Research Report

The Rule of Law: Retreat from Accountability

“anasalhajj / Shutterstock.com” Executive Summary Schoolchildren stand on their destroyed school because of the war in the Yemeni city of Taiz Yemen / Taiz City. 2 November 2018 This is Security Council Report’s fifth research devastating conflicts of recent times, Council report on the rule of law. In it, we continue to members have–apart from general rhetoric–often explore the Security Council’s work in upholding ignored issues of accountability. individual criminal accountability as an aspect of The primacy of various national and regional 2019, No. 3 its rule of law agenda in the context of its primary interests evident in our four case studies cor- 23 December 2019 responsibility for maintaining international peace relates with Council members’ inconsistent This report is available online at securitycouncilreport.org. and security. Through an examination of four situ- upholding of accountability when political alli- ations the Council deals with regularly—Myanmar, ances are at stake. It may also be part of a wider For daily insights by SCR on evolving Security Council actions please , , and Yemen—the research report trend in the Council of reduced commitment subscribe to our “What’s In Blue” takes stock of and assesses the Council’s current towards ending impunity. series at whatsinblue.org or follow @SCRtweets on Twitter. attitude and actions in respect of accountability. In previous years, Council members have at The report shows that in some of the most times demonstrated their ability to rise above

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 1 Executive Summary

their disagreements in order to adopt practi- cooperate with international criminal mech- 1 Executive Summary cal measures to advance accountability. The anisms, and alone has the power to enforce 2 Part I: Introduction Council currently appears at its most divided its decisions. Moreover, collective security since the end of the Cold War, however, and measures and enforcement action autho- 3 Part II: Case Studies the report’s case studies demonstrate that rised by the Council have a more solid legal 3 Myanmar suspected perpetrators of grave crimes can basis and enjoy more legitimacy in the eyes 7 Syria now expect minimal Council consequenc- of the wider membership than such actions 17 Ukraine es for their actions because of the particu- carried out unilaterally. 20 Yemen lar interests of one or more of the Council’s In the past, while the Council was also permanent members. inconsistent with respect to accountability, it 27 Part III: Observations and In these four cases, the Council has as yet could be innovative and assertive – for exam- Conclusions been unable either to bring to victims ple, by establishing the ad hoc criminal tri- or seriously affect the course of the conflict. bunals. Taking decisive approaches towards While other international actors have at times current conflicts on its agenda, where rele- demonstrated a more assertive and proactive vant, would enhance its legitimacy as well as response, only the Council has the ability to its effectiveness in maintaining international create binding obligations on the states con- peace and security. cerned and the wider UN membership to

Part I: Introduction

Security Council Report has published sev- in any given conflict, the case studies sug- eral reports analysing aspects of the relation- gest that the Council’s willingness to back its ship between the Security Council and the rhetoric with action could make a difference. rule of law. Two of these reports focused on The report concluded that a more consistent the Council’s work in upholding individual approach to accountability by the Council criminal accountability as part of its rule could have a positive impact on country situ- of law agenda in the context of its primary ations as well as its own profile in maintain- responsibility of maintaining international ing international peace and security. peace and security. Our August 2015 report The Rule of Law: Our 2013 report The Rule of Law: The The Institutional Framework: International Security Council and Accountability focused Criminal Courts and Tribunals looked at the on the normative aspect of the Council’s work institutional architecture that the Security on upholding individual criminal account- Council had established and used to advance ability. It found that despite its stated com- individual criminal accountability. The report mitment to accountability, both as a prin- analysed the establishment of the two ad hoc ciple and as a practical tool that can promote tribunals, the International Criminal Tribu- peace and security and have a preventive nal for the former Yugoslavia (ICTY) and the impact, the Council had been inconsistent International Criminal Tribunal for Rwanda in its approach. As several of the case stud- (ICTR) as well as the successor International ies in that report showed, the Council has, Residual Mechanism for Criminal Tribunals at times, used the tools available to uphold (IRMCT) and their respective relationships accountability in ways that had immediate with the Security Council. It further exam- impact and brought long-term improvement ined the mixed tribunals (the Special Court at country level. At other times, it failed to for Sierra Leone and the Special Tribunal for emphasise accountability mechanisms and Lebanon) that the Council had been involved measures, and to follow up on its own previ- in establishing. It also reflected on the Coun- ous decisions regarding individual account- cil’s relatively short yet complex relationship ability. The report demonstrated that in with the ICC. Through these case stud- ignoring accountability issues, the Council ies, the report concluded that the Council may have adversely affected some conflict had proven resourceful over the previous situations. While many variables are at play two decades in establishing a framework, or

2 whatsinblue.org Security Council Report Research Report December 2019 Part I: Introduction a “tool box”, to contribute to internation- importance and relevance of accountability. sexual violence were removed from the final al peace and security through institutional A prime example is the Council’s diffi- version of resolution 2467. innovation and creativity. At the same time, culty in adopting a presidential statement to In another example, during the renewal the Council had not consistently followed commemorate, on 20 August 2019, the 70th of the mandate of the UN Multidimension- up on these significant steps by providing anniversary of the adoption of the universal- al Integrated Stabilization Mission in the proper institutional support to these bodies ly ratified four Geneva Conventions, which Central African Republic (MINUSCA) in to enforce its own decisions and to secure regulate the conduct of armed conflict and November 2018, the US objected to previ- successful completion of the tasks entrusted are considered the cornerstone of interna- ously agreed language regarding MINUSCA to them, for example by not taking action to tional humanitarian law. , the Coun- cooperation with the ICC in the context of ensure member state cooperation with these cil president, had intended to adopt a short apprehending wanted criminals. (The Cen- mechanisms or by shifting the financial bur- statement on international humanitarian law, tral African Republic [CAR] is a party to den of its ICC referrals from the UN to the based primarily on previously agreed Council the Rome Statute, and the ICC is currently ICC. language. References to upholding account- investigating alleged crimes committed in The present report continues Security ability for grave violations of international the CAR since 2012). Eventually, as a result, Council Report’s focus on individual crimi- humanitarian law became contentious, how- resolution 2448 contains additional lan- nal responsibility within the framework of the ever, and negotiations lasted three weeks. The guage intended to narrow the relevance of Security Council’s work. It comes at a time final text reiterates the obligations of states to the ICC in this context. of some achievements, such as the estab- ensure the prosecution of those that commit These and other negotiations and out- lishment of the UN Investigative Team for grave breaches under the Conventions, but comes demonstrate that on top of its incon- Accountability of Da’esh (UNITAD), which explicit language calling on states to comply sistent actions on accountability, the Coun- is to consist of Iraqi investigative judges and with their obligations to end impunity and to cil’s rhetorical commitment to ending other criminal experts as well as interna- investigate and prosecute those responsible impunity has also regressed. tional experts, who were directed to collect, for genocide, , war Through an examination of four situ- store and preserve evidence of ISIL’s crimes crimes or other serious violations of interna- ations—Myanmar, Syria, Ukraine, and in Iraq that could be used later in criminal tional humanitarian law was found too over- Yemen—this report assesses the Council’s proceedings in Iraqi national-level courts. reaching by and was excluded, despite current attitude towards individual crimi- While UNITAD is mandated to investigate similar text in resolution 2467 of 23 April nal accountability, including whether it has only one party to a wider conflict, and those 2019, where Russia had found this language sought information on crimes committed in prosecuted with its assistance may be sub- acceptable as it was linked to the specific con- these situations, the role that accountability ject to the death penalty, its establishment is text of sexual violence in conflict. The ani- played in the Council’s decision-making, the a milestone in the Council’s attempt to end mosity of some states towards the ICC meant Council’s readiness to take particular mea- impunity for crimes committed by ISIL. that even the first version of the draft state- sures to uphold individual accountability, At the same time, due to pressure from ment refrained from mentioning it in order to and–where relevant–the follow-up on the some permanent members, the Council improve the prospects for consensus. For the implementation of these measures. has at times in recent years been unable to same reason, references to the ICC’s role in restate previously agreed language on the the fight against impunity in the context of

Part II: Case Studies

MYANMAR of developments in the country that some a particular focus of the Council’s attention. members believed could have implications In October 2016, the Arakan Rohing- BACKGROUND for international peace and security. Follow- ya Salvation Army (ARSA) attacked three The first Rohingya refugee crisis can be traced ing positive developments in the political pro- police border posts in Rakhine State, which back to 1978. Since then, there have been cess in 2012, the Council began to pay less led to a violent military response from the major movements of Rohingya refugees from attention to the agenda item. Between July Myanmar Armed Forces (Tatmadaw) and Myanmar into Bangladesh in 1992, 2016 and 2009 and November 2016, Myanmar was over 80,000 Rohingya fleeing to Bangladesh. 2017. Although there has been some refugee discussed only during informal consultations An OHCHR report released in February repatriation over the years, by 2016 there under “any other business”. The situation in 2017 found that crimes against the Rohing- were 200,000 Rohingya in Bangladesh. The Rakhine State, home to Myanmar’s Rohingya ya community in this context “seem to have Council regularly followed developments in population—along the Bay of Bengal south been widespread as well as systematic, indi- Myanmar since 2006, when the issue was of Bangladesh—has occasionally been a cating the very likely commission of crimes added to the Council’s agenda in the context part of these informal briefings but was not against humanity”.

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A new wave of heightened violence erupt- 671,000 Rohingya civilians to flee across the difficult, including on issues of accountability ed in August 2017, after attacks by the ARSA border into Bangladesh. The events came for crimes committed in Myanmar. Because on 25 August against police border posts were a day after the Advisory Commission on of the Chinese position, the presidential state- met by a violent response against the Rohing- Rakhine State, established by State Counsel- ment did not refer to the Independent Inter- ya population by Myanmar’s security forces. lor Aung San Suu Kyi in August 2016 with national Fact-Finding Mission established On 11 September, then-UN High Com- a mandate to look at the root causes of the by the Council (HRC) on 24 missioner for Human Rights Zeid Ra‘ad al- conflict and to make recommendations to March 2017 with a mandate to investigate Hussein told the Human Rights Council that improve the situation, released its final report. allegations of recent human rights abuses in Myanmar’s response was “clearly dispropor- The Commission, which was headed by for- Myanmar. Instead, the statement stressed tionate” and “without regard for basic prin- mer Secretary-General Kofi Annan, recom- the importance of undertaking transpar- ciples of international law”, as well a “text- mended that Myanmar take concrete steps ent investigations into allegations of human book example of ethnic cleansing”. Between to end enforced segregation of Rakhine Bud- rights abuses and violations and holding August 2017 and the end of 2018, more than dhists and Rohingya Muslims, and several to account all those responsible. The state- 730,000 Rohingya fled to Bangladesh. other steps. It also called on Myanmar to ment called on the government to cooper- Though the height of the current round of hold perpetrators of human rights violations ate with all “relevant bodies, fighting seems to be over, there are continued accountable. mechanisms and instruments, in particular clashes between the ARSA and the Tatmadaw. On 2 September 2017, the Secretary- the United Nations High Commissioner for According to , the Tat- General sent a letter to the Council, urging Human Rights”. In addition, it encouraged madaw have continued to commit grave its members to press Myanmar to ensure the Secretary-General to consider appoint- abuses against Rohingya Muslims. More full respect for human rights and interna- ing a special adviser on the issue. The Gen- than 128,000 Muslims remain in detention tional humanitarian law, and the continued eral Assembly’s Third Committee, acting on camps in central Rakhine State, where they presence and safety of the UN, to allow for a draft resolution proposed by Saudi Arabia have been confined since 2012. humanitarian assistance to those in need on behalf of the OIC, also requested the Sec- without disruption. retary-General to appoint a special envoy on MYANMAR IN THE SECURITY The Council thereafter maintained an Myanmar in a resolution on human rights in COUNCIL active interest in the situation in Myanmar Myanmar of 24 December, and he did so on until December 2017. During this period, 26 April 2018. Broaching accountability in the the Council held at least six meetings (either In early 2018, a number of Council mem- Security Council formally or under “any other business” in bers pushed for a Council visiting mission to As tensions flared up in Myanmar in Octo- consultations) and one Arria-formula meet- Myanmar. By the end of March, after Ban- ber 2016 after the ARSA attacks, the Coun- ing on Myanmar. gladesh had indicated that it would welcome cil was slow to take up the issue. Myanmar As discussions on Myanmar in the Coun- a Council visit, the government of Myanmar was only discussed under “any other busi- cil became more regular, it was clear that also acquiesced. Members of the Council ness” on 17 November 2016 and again on opposed Council measures or harsh visited Bangladesh and Myanmar from 28 17 March 2017. In addition to the traditional statements on Myanmar. Several Council April to 2 May 2018. Council members had reluctance by China to see significant Coun- members expressed interest in adopting an the opportunity to meet with refugees in cil involvement in Myanmar, other members– outcome, however, which led to an early Bangladesh, who shared their stories; many even those who had been supportive in the October draft resolution on Myanmar co- described having lost family members, hous- past– also appeared sceptical about the value drafted by France and the UK. While China es being burnt, and people shot. A group of of having meetings without any prospect of a and Russia were unwilling to engage in a female refugees spoke to Council members Council outcome. Another contributing fac- substantive discussion, on 31 October 2017 about their experiences, which included sex- tor to Council inaction was the reluctance on the co-penholders put the draft resolution ual abuse and violent assaults by soldiers fol- the part of the Organisation of Islamic Coop- under silence. Silence was broken by China, lowing the 25 August 2017 attack. Several eration (OIC) for the Council to intervene, as which reiterated that it did not agree with an refugees told Council members that they the OIC was trying to facilitate an end to the outcome on the issue. wanted to see justice served. crisis, although this remained unsuccessful. Over the next few days, the co-penhold- In Myanmar, Council members met with The dynamics in the Council changed sig- ers had extensive discussions with China, and Suu Kyi and members of the government for nificantly on 25 August 2017. Following an obtained Chinese and Russian agreement to an exchange of views, including on the need ARSA attack on Myanmar security forces at a presidential statement instead of a resolu- for accountability for the violence in Rakhine. a number of locations, Government forces tion. Achieving consensus even on the presi- At a press conference at the end of the visit, responded with violence, causing more than dential statement of 6 November 2017 was UK Ambassador Karen Pierce mentioned the

UN DOCUMENTS ON MYANMAR Security Council Presidential Statement S/PRST/2017/22 (6 November 2017) was a presidential statement on the situation in Rakhine State. Security Council Letters S/2018/938 (22 October 2018) was a letter to the President of the Security Council from the permanent representatives of Bolivia, China, Equatorial Guinea and Russia, objecting to a briefing by the Chairperson of the Fact-Finding Mission on Myanmar established by the Human Rights Council.S/2018/726 (20 July 2018) was a letter from the permanent representative of Myanmar to the president of the Security Council with an update on developments related to the three areas outlined in the Council’s 31 May letter to the government of Myanmar. S/2018/638 (27 June 2018) was a letter from the permanent representative of Myanmar to the President of the Security Council responding to the 31 May letter sent by Council members to Myanmar in an effort to find a durable solution to the humanitarian situation in Rakhine State

4 whatsinblue.org Security Council Report Research Report December 2019 Part II: Case Studies (Myanmar) possibility of the Council assisting in efforts investigation into the allegations. and the mentioned the possi- to gather evidence related to crimes commit- The momentum in the Council on Myan- bility of an ICC referral. Both China and ted against the Rohingya, whether as part of mar during and after the visiting mission sub- Russia emphasised the importance of rec- an effort to help the authorities of Myanmar sided, picking up again after the HRC’s Inde- onciliation and made no mention of matters or part of an international investigation. pendent International Fact-Finding Mission pertaining to accountability. Only a week after returning from the vis- on Myanmar issued a report on 27 August A proposed briefing on the report on 24 it, Council members were able to agree on 2018. The report concluded that war crimes October 2018 by Marzuki Darusman, the 9 May to a press statement that encouraged and crimes against humanity had been com- chair of the fact-finding mission on Myan- increased support to the Bangladesh govern- mitted and that there was sufficient informa- mar, was itself contested, and required a pro- ment, and called for access by UN agencies tion to “warrant the investigation and pros- cedural vote. Darusman stated bluntly that to Rakhine. Accountability was, again, among ecution of senior officials in the Tatmadaw with the help of the Council, accountability the more difficult issues during negotiations chain of command, so that a competent court in Myanmar was achievable: “The Security over the statement. The press statement urged can determine their liability for genocide in Council holds the power to break that cycle. Myanmar to fulfil its stated commitment to relation to the situation in Rakhine State”. The key is a sharp focus on accountability. hold accountable perpetrators of violence, The report recommended that the Council Apart from accountability for atrocity crimes including with regard to sexual violence and refer the situation in Myanmar to the ICC being a legal and moral obligation, we sub- abuse and violence against children. It seems or create an ad hoc international criminal mit that there are at least three other com- that China preferred not to have such lan- tribunal similar to those set up to prosecute pelling reasons for such a focus”. He noted guage at all, but ultimately accepted refer- crimes in Rwanda and the former Yugosla- that accountability is critical for preventing ences to accountability that were less strongly via. It also suggested that the Council adopt further violence, securing a safe environment worded than originally. targeted individual sanctions and impose an for the return of refugees and for long-term In further follow up to the visiting mis- arms embargo on Myanmar. This prompted reconciliation. He also reiterated calls for an sion, on 31 May the president of the Coun- Council members again to address issues of ICC referral, an arms embargo on Myanmar cil wrote to the permanent representatives of accountability in Myanmar, if momentarily. and targeted sanctions on Myanmar’s leaders. Myanmar and Bangladesh on the Rohingya In a briefing to the Council on 28 August Council members’ comments that followed situation, highlighting the need for concrete marking the anniversary of the August 2017 reflected, again, the varying national posi- action in three areas: access for UN agencies; attacks, the Secretary-General referred to the tions on acting on accountability. an independent investigation into alleged findings of the report, noting that account- Meanwhile, at the request of ICC Chief human rights violations; and full implemen- ability was essential for genuine reconcilia- Prosecutor Fatou Bensouda, an ICC Pre- tation of the report of Myanmar’s Rakhine tion among all ethnic groups in Myanmar trial Chamber found on 6 September 2018 Advisory Commission. In order for the Coun- and a prerequisite for regional security and that the court had jurisdiction over alleged cil to agree on the letter, its tone had to be stability. He noted that Myanmar had refused deportations of the Rohingya people from softened, particularly regarding accountabil- to cooperate with UN human rights entities Myanmar to Bangladesh as a possible crime ity. However, even with the changes, Coun- and mechanisms despite repeated calls to do against humanity. The decision enabled Ben- cil members felt that the letter allowed the so, including from members of the Council. souda to initiate a preliminary examination Council to convey its principal concerns to He concluded that the report’s findings and into the situation. Myanmar, which is not a the Myanmar government, including the recommendations deserved serious consider- state party to the Rome Statute, has made importance of accountability. ation and that effective international coopera- clear that it will not cooperate with the Court. In a letter to the president of the Council tion would be critical for ensuring credible On 26 June 2019, Bensouda announced that on 27 June, the Myanmar permanent rep- accountability mechanisms. she would request the court’s judges to open resentative responded that while the govern- Several Council members took the floor, an official investigation into the situation. A ment would act against perpetrators if there noting the findings of the fact-finding mis- Pre-Trial Chamber authorised the opening of were sufficient evidence, the human rights of sion and the need for accountability for the an investigation on 14 November 2019. all communities needed to be protected. It crimes it reported. Sweden said that the In other Court proceedings, on 11 noted the government’s decision to appoint fact-finding mission should be allowed to November 2019, The Gambia filed a com- an independent commission of inquiry to present its report to the Security Council. plaint against Myanmar before the Interna- look into allegations of human rights viola- Some, including the P3, expressed doubts tional Court of Justice (ICJ), accusing the tions following the attacks of 25 August 2017. about the impartiality of Myanmar’s Com- Tatmadaw (military) of committing genocide Some Council members were concerned mission of Inquiry, while others, such as against the Rohingya. about the independence of the commission Bolivia and Côte d’Ivoire, viewed its estab- The Council at present continues to strug- and whether it would be able to conduct a fair lishment as a positive development. Sweden gle to find common ground on Myanmar,

UN DOCUMENTS ON MYANMAR Security Council Letters S/2018/391 (26 April 2018) was a letter containing the terms of reference for the Council visiting mission to Bangladesh and Myanmar. S/2017/753 (2 September 2017) was a letter from the Secretary-General to the president of the Council, expressing concern over the rising violence in Myanmar and welcoming the Council’s discussion of the matter on 30 August. Security Council Meeting Records S/PV.8477 (28 February 2019) was a briefing on the situation in Myanmar by Special Envoy Christine Schraner Burgener, who visited the country at the end of January. S/PV.8381 and Resumption 1 (24 October 2018) was the briefing by Marzuki Darusman, the chair of the Independent International Fact-Finding Mission on Myanmar, on the mission’s 27 August report S/PV.8333 (28 August 2018) was a briefing by Secretary-General António Guterres, UNHCR Goodwill Ambassador Cate Blanchett, and UNDP Associate Administrator Tegegnework Gettu on the situation in Myanmar and the Rohingya refugee crisis..

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 5 Part II: Case Studies (Myanmar) including on practical measures to end the Rohingya community in Myanmar. UN and the UK—had requested the meeting impunity in the country. In December 2018, High Commissioner for Human Rights Zeid through a 16 October letter to the president Council members negotiated a draft resolu- Ra’ad al-Hussein was also quick to condemn of the Security Council. In response, Bolivia, tion on Myanmar which would have set out the violence and on 29 August called for the China, Equatorial Guinea and Russia wrote a regular reporting cycle on the implementa- perpetrators to be brought to justice. to the Secretary-General on 18 October tion of the recommendations of the Advisory Meanwhile, Security Council members expressing their objection to such a briefing. Committee and progress in investigating alle- were divided on acknowledging the efforts In the procedural vote, nine members voted gations of human rights violations. However, of the HRC. At the insistence of China, the in favour of holding the meeting, three voted China and Russia did not engage on the reso- Council’s 6 November 2017 presidential against, and four abstained. lution, and the UK ultimately decided not to statement did not refer to the fact-finding Though it submitted its final report in table the draft for a vote. mission but did call on the government to August 2018, the fact-finding mission con- By the beginning of November 2019, the cooperate with all “relevant United Nations tinues to address issues of accountability in Council had met only four times on Myan- bodies, mechanisms and instruments, in Myanmar. In a statement on 14 May 2019, mar that year, without any adopted out- particular the United Nations High Com- it urged the international community to cut comes: on 16 January to be briefed by the missioner for Human Rights”. off all financial and other support to Myan- Under-Secretary-General for Political and The HRC continued actively to explore mar’s military, saying its commanders need Peacebuilding Affairs, the High Commis- new mechanisms and ways of advancing to be isolated and brought before a cred- sioner for Refugees and a UNDP represen- accountability for human rights violations in ible court to answer charges of war crimes, tative; on 28 February and 2 July, to receive Myanmar. On 4 July 2018, al-Hussein gave crimes against humanity and genocide. On updates from the Secretary-General’s Spe- an oral briefing to the HRC on the human 23 August 2019, Radhika Coomaraswa- cial Envoy Christine Schraner Burgener; and rights situation of the Rohingya people in my, a member of the fact-finding mission, on 21 August, under “any other business”, which he urged Myanmar to grant immedi- briefed Council members on accountability following Myanmar’s announcement that it ate access to special rapporteur Lee, and also for mass atrocity crimes in Myanmar in an had cleared 3,450 Rohingya people for repa- urged the Security Council to refer Myan- Arria-formula meeting. triation. Throughout these sparse meetings, mar to the ICC. Though the Council did not In 2019, the Council has become less there has been no indication that the Council respond to this request, on 27 September, at engaged on Myanmar, perhaps fatigued by is ready to take any action. the request of al-Hussein, the HRC estab- its inability to find common ground among lished an “ongoing, independent mecha- its members. Interaction with the Human Rights nism”, the Independent Investigative Mech- Council anism for Myanmar, to “collect, consolidate, OBSERVATIONS In contrast to the Security Council’s slow preserve and analyse evidence of the most On 29 May 2019, former Guatemalan For- reaction to the events unfolding in Myan- serious international crimes and violations eign Minister Gert Rosenthal finished an mar from October 2016, the Human Rights of international law committed in Myanmar internal review of how the UN system oper- Council was comparatively faster to engage. since 2011, and to prepare files in order to ated in Myanmar from 2010 to 2018, in the As mentioned above, on 24 March 2017 the facilitate and expedite fair and independent years leading up to and following the mass HRC established the independent, interna- criminal proceedings”. It decided that the exodus of the Rohingya. The Rosenthal tional fact-finding mission with a mandate to Mechanism should make use of the infor- report, commissioned by the Secretary-Gen- investigate allegations of recent human rights mation collected by the fact-finding mis- eral and made public, found that the UN sys- abuses in Myanmar. The Myanmar govern- sion as well as continuing to collect evidence. tem had been “relatively impotent to effec- ment indicated that it would not cooperate The mechanism was welcomed by the Gen- tively work with the authorities of Myanmar, with the international fact-finding mission, eral Assembly in a resolution adopted on 22 to reverse the negative trends in the areas of nor allow its members into the country. December 2018, and the Secretary-General human rights, and consolidate the positive The HRC’s Special Rapporteur on Myan- appointed the head of the mechanism, Nich- trends in other areas”. The report notes that mar Yanghee Lee reported in early August olas Koumjian, on 2 April 2019. in grave situations, the Secretariat requires 2017 that the security and human rights sit- Not only has the Security Council the wider membership, acting through the uations had worsened. On 27 October, the refrained from acknowledging the work of Security Council, “to act decisively to avert Fact-Finding Mission on Myanmar–which the HRC in outcome documents but hear- even more horrific outcomes, or reverse the had not been granted access to Myanmar– ing directly from the HRC-established bod- carrying out of human rights abuses already issued a press release at the conclusion of its ies has become controversial. The 24 Octo- committed. But in the absence of the sup- first visit to Bangladesh. The three experts ber 2018 briefing from Darusman was only port of the Security Council, which is fre- said they were “deeply disturbed” by the possible after a procedural vote. Nine mem- quently restrained due to its composition accounts of killings, , rape, arson and bers—Côte d’Ivoire, France, Kuwait, the and system of governance, the options of aerial attacks reportedly perpetrated against Netherlands, Peru, Poland, Sweden, the US the United Nations to address the challenge

.UN DOCUMENTS ON MYANMAR Security Council Meeting Record S/PV.8060 (28 September 2017) was a briefing by UN Secretary-General António Guterres on the crisis in Myanmar at the request of Egypt, France, , Senegal, Sweden, the and the . Security Council Press Statement SC/13331 (9 May 2018) was the press state- ment on the Council visit to Myanmar and Bangladesh. General Assembly Documents A/RES/73/264 (22 December 2018) welcomed the establishment of the Independent International Fact-Finding Mission on Myanmar by the HRC. A/RES/72/248 (24 December 2017) requested the Secretary-General to appoint a special envoy for Myanmar.

6 whatsinblue.org Security Council Report Research Report December 2019 Part II: Case Studies (Myanmar) in a manner consistent with its values and whether the crime of deportation has been more than 500,000 people have lost their principles is often rather limited”. Accord- committed, the scope of that decision is still lives in the conflict, most of them at the hands ing to Rosenthal, this has contributed, among limited. Furthermore, as a non-party, Myan- of pro-government forces. According to the several other things, to the failure of the UN mar is under no obligation to cooperate with UNHCR, out of a pre-war population of 22 system to address violations of international the court. A Council referral could expand million, over 5.6 million Syrian refugees are humanitarian and human rights law that have the scope of an ICC probe, give it more inter- now in other countries, mainly Lebanon, Tur- occurred in Myanmar. national legitimacy, and decide that Myan- key and Jordan. Another 6.6 million persons Indeed, political divisions in the Council mar must cooperate with the Court. are displaced within Syria. have impeded serious discussion and pro- Syria has also been a theatre for the use of nouncement, as well as meaningful action, on SYRIA chemical weapons, mainly but not exclusive- accountability for such crimes in Myanmar. ly by government forces, starting in March Though several Council members have been BACKGROUND 2013. International pressure at the time led keen to focus more on accountability, Chi- What began as a string of popular protests President Assad to agree to the complete na, with the support of a few other Council against the Syrian government in January removal and destruction of Syria’s chemi- members, has been reluctant to press Myan- 2011, inspired by similar events across the cal weapons arsenal, as demanded by the mar. As time has passed, this reluctance has and North Africa, within a few Council, and its accession to the Chemical also been reflected in efforts to downplay the months descended into a bloody civil war of Weapons Convention. Despite these actions, human rights-related aspects of the situation unthinkable proportions. Different rebel fac- chemical weapons continued to be used in and to focus instead on refugee repatriation tions, rival jihadists from the Al-Qaida-affil- Syria, leading to two rounds of air strikes by and reconciliation. The Council’s inabil- iated Al-Nusra Front, as well as government the US, the UK and France against Assad’s ity to support the work of other UN bodies and Kurdish forces, were engaged in combat military assets in 2017 and 2018. on accountability for crimes committed in in different parts of the country. Capitalising The Security Council has been informed Myanmar, and its difficulties in organising a on the ensuing chaos, ISIL took control of frequently and regularly on the situation in meeting to discuss information from the fact- large swathes of Syria and Iraq, proclaiming Syria and has acted, to varying degrees, on finding mission, send a message of indiffer- the creation of a “caliphate” in June 2014. all three fronts—political, humanitarian and ence in the face of the possible commission Various international actors, both state chemical weapons. Matters of individual of grave crimes. As noted by Rosenthal, the and non-state, increasingly became involved accountability have been relevant to all three Council’s inability to lead on Myanmar has in the Syrian conflict. Iranian and Rus- aspects of the conflict. As the following case contributed to the gap in the UN response sian forces have supported Syria’s President study will show, aside from certain strides to atrocities there. Bashar al-Assad. The Syrian government has on the chemical weapons track, account- The Council has several options for tak- also enjoyed the support of Lebanon’s Shi’a ability has largely been marginalised in the ing steps towards accountability. These could Islamist movement. The Sunni- Council’s work, despite the efforts of some begin with renewed engagement on Myan- dominated opposition, now nearly defeat- Council members. mar through more regular meetings to dis- ed, has been supported to varying degrees Approaching its ninth year at this writ- cuss the situation. The Council could consid- by , Saudi Arabia, Qatar and Jordan, ing, the Syrian conflict serves as a reminder er adopting a decision with stronger language along with the US, UK and France, includ- not only of the devastating consequences of on impunity for crimes committed in Myan- ing through training and military operations. oppression, but also of the consequences of mar. In addition, it could establish a special The latter have been aimed mainly at ISIL but international divisions, including within the tribunal, impose sanctions on the country, have also targeted government forces on occa- Security Council, where China and Russia such as an arms embargo, or targeted sanc- sion. has carried out air raids inside Syr- have to date jointly vetoed seven resolutions tions on individuals responsible for crimes, ia, reportedly targeting Hezbollah and Iranian on Syria, and Russia alone, seven more. and demand that Myanmar cooperate with facilities. At the time of writing, a robust Turk- the HRC’s fact-finding mission, the HRC’s ish military offensive against Kurdish militias THE SECURITY COUNCIL ON evidentiary mechanism, and other actors in north-eastern Syria is ongoing. SYRIA on accountability, such as the ICC. If some Negotiations between the Syrian gov- Council members remain reluctant to coop- ernment and several opposition groups to The humanitarian situation, erate with the HRC mechanisms, the Council achieve a political transition in Syria, wheth- besiegement as a method of war could establish its own investigative body, or er these were UN-facilitated talks conduct- From the outset of the conflict in Syria, hin- ask the Secretary-General for recommenda- ed in Geneva on and off since June 2012, dering humanitarian access and aid to civil- tions on how to proceed independently of the or the parallel “Astana process” talks spon- ians as well as indiscriminate attacks and HRC on accountability in Myanmar. sored by Iran, Russia and Turkey, have pro- besiegement of civilians, including to the Some Council members have considered duced agreement only on the composition brink of starvation, became common forms the possibility of pursuing a Council referral of a constitutional committee. of warfare, particularly at the hands of the of the situation to the ICC. While the ICC The humanitarian situation in Syria is Syrian government and its allies. The Council has ruled that it has jurisdiction to adjudicate overwhelmingly bleak. It is estimated that made significant strides on the humanitarian

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 7 Part II: Case Studies (Syria) track, albeit starting three years after the con- lines, in besieged areas and across borders, the full Council, the Council adopted reso- flict broke out, adopting resolutions obligat- and expressing its intent to take further steps lution 2165, authorising cross-border and ing all parties, including the Syrian govern- in case of non-compliance. cross-line access for the UN and its partners ment, to allow for humanitarian access to The vote followed two weeks of intense to deliver humanitarian aid in Syria without besieged areas. Accountability for the tac- negotiations that resulted in significant com- state consent. Opening the potential to help tics of besiegement, impeding humanitar- promises on references in the draft to Syria’s 2.9 million people in need, the resolution ian access and indiscriminate attacks against unwillingness to implement the presidential authorised access through four border cross- populated areas was, however, largely ignored. statement on humanitarian access, possible ings and a mechanism to monitor aid con- On top of progress on cross-border access in sanctions in case of non-compliance, cross- voys and notify the Syrian authorities. The general, at points of heightened conflict over border access and access to besieged areas, first such convoy traversed the Beb al-Salam specific besieged areas, the Council tried and aerial bombardment, accountability and crossing from Turkey on 24 July. at times succeeded–if in very limited fashion– counter-terrorism. Russia said both pub- On 13 December 2018, the Security to mitigate somewhat the disastrous effects licly and during negotiations that the threat Council adopted resolution 2449 prepared of the conflict. of sanctions was a non-starter. As a result, by Sweden and Kuwait, once again authoris- The first significant breakthrough in the the resolution dropped the intent to impose ing cross-border and cross-line humanitarian Council on the humanitarian track came in measures under Article 41 if demands were access to Syria. China and Russia abstained. October 2013. In a presidential statement on not met within 15 days, which had been In a preambular paragraph, the Council not- 2 October, the Council expressed grave alarm included in a previous draft, instead retain- ed with concern that “impunity in Syria con- at the significant and rapid deterioration of ing a less specific intent to take further steps tributes to widespread violations and abuses the humanitarian situation in Syria and rec- in case of non-compliance. An earlier draft of human rights and violations of internation- ognised that the magnitude of the humanitar- had stressed accountability, recalling the al humanitarian law” and stressed the need to ian tragedy caused by the conflict required relevance of the ICC, but the final text only end impunity for these violations, but with no immediate action to facilitate safe and unhin- emphasised that those responsible for viola- suggestion of follow-up actions. dered delivery of humanitarian assistance in tions of international humanitarian law and The story of Aleppo at the end of 2016 is the whole country. It condemned all cases of human rights abuses should be brought to a telling one as to the dire effects of besiege- denial of humanitarian access, and recalled justice. The references to the ICC raised con- ment in Syria and the Council’s limitations in that arbitrarily depriving civilians of objects cerns among a few members, particularly this regard. After a short cease-fire between indispensable to their survival, including wil- Russia, Rwanda and the US. Russian and Syrian government forces and fully impeding relief supply and access, can On 26 June, Under-Secretary-General for Western-backed rebels collapsed in Septem- constitute a violation of international human- Humanitarian Affairs Valerie Amos briefed ber 2016, Russia and the Syrian government itarian law. It urged all parties to facilitate Council members, reporting the contin- forces turned their focus to the rebel-held humanitarian efforts and stressed the need ued lack of progress in implementing any of eastern part of Aleppo, unleashing a fierce to end impunity for violations of international the key demands in resolution 2139, such bombing campaign. Media reports suggested humanitarian law and violations and abuses as authorising cross-border aid operations, that in their efforts to subdue the rebels, little of human rights, reaffirming that those who allowing access to besieged or hard-to-reach was done to avoid causing civilian casualties; have committed or are otherwise responsible areas, observing medical neutrality, ceasing warplanes dropped indiscriminate munitions for such violations and abuses in Syria must aerial bombardments, and easing admin- such as cluster bombs and incendiary bombs be brought to justice. istrative hurdles. She presented a report to and targeted medical facilities, search and Syria’s unwillingness to act on the presi- Council members illustrating the Syrian rescue teams, and aid workers. dential statement led to the first Council reso- government’s abuse of the distribution of During the onslaught, the humanitarian lution on humanitarian access. On 22 Febru- humanitarian aid as a tactic of war. penholders—at the time Egypt, New Zealand ary 2014, the Council unanimously adopted On 14 July 2014, following five weeks of and Spain—circulated a draft resolution in resolution 2139 on the initiative of Australia, intense negotiations between the penholders late November that called for a seven-day Jordan and Luxembourg, demanding that all on the Syria humanitarian track—Australia, pause to all attacks in Aleppo. Russia assert- parties, in particular the Syrian authorities, Jordan and Luxembourg—and the P5, and ed that a truce in Aleppo should only go into allow humanitarian access across conflict a further three rounds of negotiations with effect after the country-wide separation of

UN DOCUMENTS ON SYRIA Security Council Resolutions S/RES/2449 (13 December 2018) was a resolution prepared by Sweden and Kuwait renewing the authorisation for cross- border and cross-line humanitarian access to Syria. S/RES/2401 (24 February 2018) demanded a cessation of hostilities in Syria; it was adopted unanimously. S/RES/ 2328 (19 December 2016) demanded UN access to monitor evacuations from Aleppo. S/RES/2319 (17 November 2016) renewed the mandate of the UN-OPCW Joint Investigative Mechanism for a further year. S/RES/2235 (07 August 2015) established the UN-OPCW Joint Investigative Mechanism (JIM) to determine responsibility for the use of chemical weapons in Syria. S/RES/2209 (6 March 2015) condemned the use of toxic chemicals such as chlorine, without attributing blame; stressed that those responsible should be held accountable; recalled resolution 2118; and supported the 4 February 2015 decision of the OPCW. S/RES/2165 (14 July 2014) authorised cross-border and cross-line access for the UN and its partners to deliver humanitarian aid in Syria without state consent and established a monitoring mechanism for 180 days. S/RES/2139 (22 February 2014) demanded that all parties, in particular the Syrian authorities, allow humanitarian access in Syria across conflict lines, in besieged areas and across borders and expressed the intent to take further steps in the case of non-compliance.S/RES/2118 (27 September 2013) required the verification and destruction of Syria’s chemical weapons stockpiles, called for the convening of the Geneva II peace talks, and endorsed the establish- ment of a transitional governing body in Syria with full executive powers. It was adopted unanimously. S/RES/2043 (21 April 2012) established UNSMIS. S/RES/2042 (14 April 2012) authorised the deployment of 30 military observers to Syria. Security Council Presidential Statements S/PRST/2019/12 (8 October 2019) was a presidential statement welcoming the Secretary-General’s announcement of the formation of the Constitutional Committee. S/PRST/2013/15 (2 October 2013) was a presidential statement on humanitarian access in Syria, which urged the government to take immediate steps to allow for expanded relief operations and lift bureaucratic obstacles. S/PRST/2012/6 (21 March 2012) was a presidential state- ment supporting the Joint Special Envoy’s six-point plan for mediation of the Syrian crisis. S/PRST/2011/16 (3 August 2011) expressed concern over the deteriorating situation in Syria

8 whatsinblue.org Security Council Report Research Report December 2019 Part II: Case Studies (Syria)

Al-Nusra terrorist fighters from other armed all affected areas there, he said. Following armed groups in Eastern Ghouta (Jaish al- opposition groups. The humanitarian pen- O’Brien’s briefing, France sought a vote on Islam, Faylaq al-Rahman and Ahrar al-Sham), holders, the P3 and several other Council a draft resolution that called for evacuations which expressed their commitment to abide members maintained that “counterterrorism” to be carried out in line with international by the terms of the resolution. was being used as an excuse by Russian and humanitarian law, and for direct observation, However, the resolution was not imple- Syrian forces to justify targeting all opposi- independent monitoring of and reporting on mented, as Syrian forces pressed forward tion groups and civilians in eastern Aleppo. the evacuations and the situation of civilians with their onslaught, claiming they were On 5 December 2016, the draft resolution inside eastern Aleppo. Finally, on 19 Decem- fighting against the above-mentioned terror- was put to a vote and was vetoed by China ber, the Council was able to agree on resolu- ist groups. On 12 March 2018, Secretary- and Russia. The targeted attacks and indis- tion 2328, demanding UN access to monitor General António Guterres told the Council criminate use of munitions were condemned evacuations from Aleppo. that there had been no cessation of hostilities by human rights groups, but continued The Council’s inability to be a central and that violence had continued not only in unabated until the rebel front in Aleppo col- actor in de-escalating humanitarian cri- Eastern Ghouta but also in Afrin, Idlib, and lapsed in December 2016, while the Council ses and besiegement situations was further and its suburbs. The delivery of was unable to agree on a ceasefire. evident in Eastern Ghouta and, at the time humanitarian aid had not been safe, unim- On 13 December, France and the UK of writing, is still being manifested in Idlib. peded or sustained, and no sieges had been called for an emergency meeting of the Coun- With the military offensive in Eastern Ghouta lifted. He also underscored that efforts to cil, where the Secretary-General reported resulting in more than 1,200 civilian casual- combat terrorist groups did not supersede that after 48 hours of unprecedented levels ties since early February 2018, High Com- humanitarian obligations. Eventually, the of bombardment, the UN had seen an almost missioner for Human Rights Zeid Ra’ad al- remaining rebels surrendered in early April complete collapse of the armed opposition’s Hussein asked in a statement on 21 February, and those that remained, evacuated to Idlib, front lines in eastern Aleppo. He said that “How much cruelty will it take before the the last stronghold of opposition forces. civilian deaths and injuries continued at a international community can speak with one More generally, the Syrian government brutal pace. At that meeting, a majority of voice to say enough dead children, enough continued to advance and consolidate its Council members called on Russia and Syria wrecked families, enough violence, and take control over its territory. It also targeted to allow impartial observers into Aleppo to resolute, concerted action to bring this mon- areas that were supposed to be part of the monitor the situation of civilians. Meanwhile, strous campaign of annihilation to an end?” de-escalation zones (areas where fighting Turkey and Russia had reached a deal for the Finding momentary consensus among its was to stop under the Astana agreement of evacuation of fighters and civilians from what members, the Council adopted resolution May 2017 between Russia, Iran and Turkey). remained of rebel-held eastern Aleppo. 2401 on 24 February, demanding that all par- On 29 May 2018, Under-Secretary-Gener- The evacuations stalled repeatedly amid ties cease hostilities for 30 days without delay al for Humanitarian Affairs Mark Lowcock reports of convoys coming under fire, evac- and allow safe, unimpeded and sustained told the Council how, after taking control uation routes being cut off by government- access each week to the humanitarian con- of Eastern Ghouta and Yarmouk, the gov- allied militias, individuals being removed voys of the UN and its implementing partners, ernment had continued to prevent access by from buses leaving eastern Aleppo, and including to hard-to-reach and besieged loca- UN humanitarian actors, a point repeated summary executions. tions. Based on a Kuwaiti and Swedish draft, in the Secretary-General’s 20 June monthly Against this backdrop the OCHA head, the separation of armed groups from terrorist report on the humanitarian situation. The Under-Secretary-General for Humanitar- organisations was critical to obtaining Rus- Director of the Coordination and Response ian Affairs Stephen O’Brien, briefed Council sian agreement to the resolution. Resolution Division of OCHA, John Ging, informed the members under “any other business” on 16 2401 distinguished between terrorist groups Council on 27 June 2018 of the escalation of December. He reiterated that the UN stood designated by the Council—which would violence in , such as the use ready to help but had been granted only very not be protected by the cessation of hostili- of heavy artillery and aerial shelling to tar- limited access to Aleppo. The UN was wait- ties—and other armed groups that would be get civilian infrastructure, including several ing for the Syrian government to approve the protected. After the resolution was adopted, health facilities. redeployment to Aleppo of existing UN staff evacuation of civilians was made possible As the humanitarian situation worsened in Syria, and permission for the UN to access by Russia’s direct engagement with these and denial of humanitarian access became

UN DOCUMENTS ON SYRIA Security Council Presidential Statements.Secretary-General’s Reports S/2019/509 (20 June 2019) was the annual report on children and armed conflict. S/2018/465 (16 May 2018) was the latest annual report on children and armed conflict. S/2016/738 (24 August 2016) was the JIM’s third report. S/2015/813 (22 October 2015) was on the humanitarian situation. S/2015/211 (25 March 2015) was on the 18th OPCW report on chemical weapons. S/2013/735 (12 December 2013) was the final report of the UN investiga- tion into chemical weapons use in Syria. S/2013/149 (14 March 2013) was the second annual report on sexual violence in conflict.Security Council Letters S/2019/208 (4 March 2019) was an FFM report regarding the chemical weapons attack in Douma in April 2018. S/2018/732 (23 July 2018) included a report of the OPCW fact-finding mission in Syria regarding the incidents in Al-Hamadaniyah on 30 October 2016 and in Karm Al-Tarrab on 13 November 2016 and an interim report regarding the Douma 7 April 2018 incident. S/2018/478 (17 May 2018) was a report of the Fact-Finding Mission of the OPCW determining that chlorine was likely used as a chemical weapon on 4 February 2018 in Saraqib. S/2017/904 (26 October 2017) was a letter from the Leadership Panel of the OPCW, submitting the seventh report of the Joint Investigative Mechanism. S/2016/807 (21 September 2016) was a letter from the President of the Security Council, in an exchange of letters with the Secretary-General, to extend the mandate of the JIM until 31 October 2016. S/2015/794 (15 October 2015) was a letter from the President of the Security Council to the Secretary-General transmitting an ICRC letter on the ethical principles of health care in times of armed conflict and other emergencies. S/2015/454 (18 June 2015) was a letter to the President of the Security Council by 71 member states that strongly believed the protection situation in Syria was getting worse—including the P3 and elected Council members Jordan, , Malaysia, New Zealand and Spain—expressing outrage at the continued indiscriminate use of weapons, such as barrel bombs. S/2014/955 (30 December 2014) was the transmission of the OPCW Fact-Finding Mission’s reports to the Security Council. S/2014/361 (19 May 2014) was a letter from Switzerland, on behalf of 58 member states, calling for all UN member states to co-sponsor the draft resolution referring Syria since to the ICC.

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 9 Part II: Case Studies (Syria) even more acute, another siege-related reduction in violence. was the case in Eastern Ghouta. Only China humanitarian crisis unfolded in Idlib. Con- In a push to achieve a new ceasefire, a Bel- and Russia voted in favour of their draft, with cerns grew in the second half of 2018 when gium--Kuwait draft resolution was nine votes against and four abstentions. the area hosted 1.4 million civilians dis- put to a vote on 19 September 2019, decid- At the time of writing, the situation in placed by the conflict and 2.9 million peo- ing that all parties immediately cease hostili- Idlib remains fluid, and the risk of resumed ple in all, including one million children. ties in Idlib by noon on the following day. It fighting depends largely on the unilater- Despite constituting the last de-escalation demanded that all parties immediately end al ceasefire declared by Russia and Syria, zone, the presence in Idlib of around 10,000 indiscriminate aerial bombardments, take which can end at any time. In his 29 August fighters of Hay’at Tahrir al-Sham was used feasible precautions to avoid and minimise 2019 briefing, Lowcock stressed that 3 mil- to justify military operations, including Rus- harm to civilians and civilian objects, and lion civilians in Idlib remain at risk, remind- sian and Syrian airstrikes. respect and protect medical and humani- ing the Council that they enjoy “protection The UN repeatedly warned of the possi- tarian personnel. It demanded that all par- under international human rights law and bility of a humanitarian emergency on a scale ties allow and facilitate safe, unimpeded and international humanitarian law. The actions not yet seen in the Syrian conflict in case of an sustained humanitarian access for the UN killing and displacing them must stop now. escalation of military activity in and around and its implementing partners to requested The situation in Idlib needs a predominantly Idlib. Accordingly, international engagement areas and populations in Syria. The draft political solution.” over Idlib sought to avert both the anticipated further reaffirmed that the Council will take major military operation by the Syrian gov- further measures in the case of non-compli- Interaction with the High ernment and its allies, as well as the humani- ance with the resolution, in accordance with Commissioner for Human Rights and tarian consequences of an assault. During the UN Charter. The draft text also stated the Human Rights Council the month of September 2018, the Council that all counter-terrorism measures, includ- From the beginning of the conflict, the HRC held four meetings on the escalating situa- ing in Idlib, must comply with international exercised consistent engagement on account- tion in Idlib. On the day of the final meeting, humanitarian law. ability, by establishing bodies of inquiry and 18 September, Russia and Turkey announced The draft resolution was vetoed by China calling on the Security Council to act. The the establishment of a separation of forces and Russia, their main objection being the High Commissioner for Human Rights also demilitarised zone 15 to 20 kilometres wide application of the cessation of hostilities to engaged with the Security Council. The along the contact line between armed groups counter-terrorism operations, given that Rus- Council did not follow up and grew reluctant and government troops in Idlib. sia and Syria have justified military opera- to interact with these bodies. By 2018, the The reprieve was temporary, and heavy tions in response to the threat of terrorist Council was divided over the issue of receiv- fighting between the warring parties resumed groups, including in Eastern Ghouta, after ing a Syria briefing from the High Commis- when Syria and Russia stepped up bombard- the adoption of resolution 2401. Russia and sioner for Human Rights. ments in Idlib in April 2019 and Hay’at China also took issue with a reference to “fur- Four days after High Commissioner Navi Tahrir al-Sham and other groups remained ther measures”, and to a proposed ceasefire Pillay urged in informal consultations that active in the demilitarised zone. OHCHR monitoring mechanism. China and Russia the Council consider referring the “pattern documented 1,089 civilian deaths (includ- tabled their own resolution calling for a cease- of widespread or systematic human rights ing 300 children) as a result of shelling and fire, clarifying that “the cessation of hostilities violations by Syrian security and military aerial bombardments in north-western Syria shall not apply to military operations against forces” to the ICC, the HRC established between 19 April and 29 August 2019 while individuals, groups, undertakings and enti- an Independent International Commission OCHA reported 630,000 displacements—a ties associated with terrorist groups, as desig- of Inquiry on the Syrian Arab Republic, on figure that includes multiple displacements nated by the Security Council”, similar to the 22 August 2011. Its mandate was to inves- of the same person—between 1 May and 27 distinction made in resolution 2401. Some tigate all alleged violations of international August, as people fled the fighting. On 30 Council members were concerned that an human rights law in Syria since March 2011. August 2019, Russia announced a unilateral exception for counter-terrorism operations The Commission was also directed to estab- ceasefire that was confirmed by the Syrian could offer a loophole to allow continued lish the facts and circumstances that might government and appears to have led to a operations by Syria and Russia in Idlib, as amount to such violations and of the crimes

UN DOCUMENTS ON SYRIA Security Council Letters S/2014/244 (2 April 2014) was a letter from France to the President of the Security Council, transmitting the “Caesar Report” regarding torture and executions in Syrian detention facilities. S/2013/19 (14 January 2013) was a letter from Switzerland co-signed by 56 other member states, requesting that it refer the situation as of March 2011 to the ICC S/2013/184 (25 March 2013) was a letter from the Secretary-General informing the Council of his intention to conduct an investigation into the alleged use of chemical weapons in Syria. S/2013/19 (14 January 2013) was a letter from Switzerland to the President of the Security Council and the Secretary-General, requesting the Council to refer the situation in Syria since March 2011 to the ICC. The letter was co-signed by 56 other member states including Council members Australia, France, Luxembourg, the Republic of Korea and the UK. Security Council Meeting Records S/PV.8645 (24 October 2019) was a meeting on the political and humanitarian situation in Syria. S/PV.8623 (19 September 2019) was on the humanitarian situation in Syria. S/PV. 8609 (20 August 2019) was a meeting on political and humanitarian situations in Syria. S/PV.8553 (18 June 2019) was on the situation in north-western Syria. S/PV.8527 (17 May 2019) was on the situation in north-western Syria. S/PV.8493 (27 March 2019) was a briefing on the political and humanitarian situations in Syria. S/PV.8411 (29 November 2018) was a briefing by Reena Ghelani, Director for Operations and Advocacy in the Office for the Coordination of Humanitarian Affairs on Syria. S/PV.8355 (18 September 2018) was a briefing by Under-Secretary-General for Humanitarian Affairs Mark Lowcock and Special Envoy Staffan de Mistura.S/PV.8347 (11 September 2018) was a briefing requested by Russia on the Astana process.S/PV.8345 (7 September 2018) was a briefing on Idlib by de Mistura and Ging.S/PV.8269 (29 May 2018) was a briefing by Under-Secretary-General for Humanitarian Affairs Mark Lowcock.S/PV.7476 (29 June 2015) was a briefing by Assistant Secretary-General for Humanitarian Affairs Kyung-wha Kang. S/PV.8296 (27 June 2018) was a briefing on cross-border operations by Special Envoy Staffan de Mistura and Director of the Coordination and Response Division of OCHA John Ging. S/PV.8225 (9 April 2018) was a briefing by Deputy to the High Representative for Disarmament Affairs, Thomas Markram, and de Mistura.S/PV.8209 (19 March 2018) was a meeting at which the Council failed to garner nine votes to hold a briefing by High Commissioner for Human Rights Zeid Ra’ad al-Hussein.

10 whatsinblue.org Security Council Report Research Report December 2019 Part II: Case Studies (Syria) perpetrated and, where possible, to identify to consider adopting targeted measures. In France, two members of the Commission those responsible, with a view to ensuring the end, the draft resolution was vetoed by team were invited to brief Council members that perpetrators would be held accountable, China and Russia, with Brazil, India, Leba- in an Arria-formula meeting on 15 April including for violations that might consti- non and South Africa abstaining. 2014 as part of a wider strategy to bring tute crimes against humanity. Furthermore, With Council members still divided and accountability for human rights violations to the HRC recommended that the Security unable to take action, Russia circulated a the forefront of Council action. Eventually, Council consider referring the situation in draft resolution on 15 December 2011. Dur- a draft resolution referring the situation in Syria to the ICC, as the High Commissioner ing the negotiations, EU Council members Syria to the ICC was vetoed by China and for Human Rights had urged. and the US proposed changing language that Russia. At press time, the last Arria-formula The following day, in an effort to address suggested symmetry in violence by the oppo- meeting with the Commission of Inquiry on accountability, the UK circulated to mem- sition and the government, and introduced Syria had been held on 28 November 2018. bers of the Security Council a draft resolu- other elements, including stronger human The Commission of Inquiry was not tion imposing sanctions on Syria. The draft, rights references, an explicit call for coopera- alone in highlighting mass crimes being com- which was supported by the European mem- tion with the HRC’s Commission of Inquiry, mitted in Syria. On 16 May 2012, for exam- bers of the Council and the US, called for the need for accountability, and a demand ple, the UN Committee against Torture con- freezing the assets of Assad, other key Syrian for full implementation of an sidered the situation in Syria, in particular, figures, and four entities, as well as a travel initiative to stop the violence in Syria. Russia widespread killings, torture in hospitals and ban on 22 individuals. It also included an decided not to pursue a resolution. detention centres, torture of children, and arms embargo, set up a new sanctions com- As soon became clear, the findings of the sexual torture. The committee had request- mittee and requested the Secretary-General Commission of Inquiry were pointing princi- ed a special report from Syria describing the to create a panel of experts to support that pally towards the Syrian government as the measures it was taking to effectively imple- committee’s work. The draft resolution not- main perpetrator of mass crimes. Its update ment its obligations under the Convention ed the HRC’s recommendation regarding a report of 24 May 2012 found that most of the against Torture, but Syria did not provide referral to the ICC and welcomed its decision human rights violations were being commit- the report, nor did it attend the session. The to establish the independent international ted by the and security services committee also discussed alleged violations commission of inquiry. This draft was not put during military operations conducted in areas by armed opposition groups. to a vote, due to Russia’s known opposition regarded as supportive of anti-government In another example, on 18 April 2013, the to sanctions against Syrian officials. armed groups. The Commission received Special Representative on Sexual Violence in A vote did take place on a draft resolu- several accounts of anti-government armed Conflict, Zainab Bangura, highlighted the tion on 4 October 2011. Early versions of the groups also committing human rights abus- findings from the recent Secretary-Gener- text contained references to accountability, es. Pillay conveyed this information regularly al’s report on sexual violence in conflict that including mention of the ICC in a pream- to the Council, reporting on the increase in identified Syrian government forces and their bular paragraph, and a number of human violence and noting that government forces allied militia, the Shabbiha, as the main per- rights references. These were later taken out were likely to have committed crimes against petrators of sexual violence against women, of the final draft in response to requests, in humanity. Nevertheless, the Council was men and children and noted widening allega- particular by Russia and Brazil, to strength- unable to act on this information. tions of sexual violence being committed by en language on resolving the crisis peacefully The Commission of Inquiry collected evi- all parties in the conflict. (Syrian government and through an inclusive Syrian-led political dence of mass crimes committed in Syria over forces and the Shabbiha were added to the process. Language condemning the Syrian the years. Though the Council never agreed annex of the 2013 Secretary-General’s report, crackdown on protesters was retained, as to be briefed formally by the Commission of which lists parties credibly suspected of com- was language on possible consideration of Inquiry, members of the Commission briefed mitting or being responsible for patterns of imposing sanctions on Syria. Several Coun- Council members in eight Arria-formula rape and other forms of sexual violence.) She cil members still had concerns, especially meetings between 2012 and 2018. One such added that her message to the perpetrators of about including language on the intention meeting occurred when, on the initiative of such abuses is that “justice may be delayed,

UN DOCUMENTS ON SYRIA Security Council Meeting Records S/PV.7543 (27 October 2015) was a briefing by OCHA on the humanitarian situation in Syria.S/PV.6949 (18 April 2013) was a briefing by Under-Secretary-General for Humanitarian Affairs Valerie Amos, High Commissioner for Refugees António Guterres, Special Representative of the Secretary-General on Sexual Violence in Conflict Zainab Bangura, and Special Representative of the Secretary-General on Children and Armed Conflict Leila Zerrougui. S/PV.6725 (28 February 2012) was a briefing by Under-Secretary-General for Political Affairs B. Lynn Pascoe on the situation in the Middle East. S/PV.6711 (4 February 2012) was the meeting during which China and Russia vetoed a draft resolution, sponsored by Morocco. S/PV.6531 (10 May 2011) was the debate on the protection of civilians at which Ivan Šimonović, the Assistant Secretary-General for Human Rights, briefed. Security Council Press Statements SC/12690 (20 January 2017) condemned the destruction of cultural heritage by ISIL in Syria following reports of the destruction of the tetrapylon and parts of the theatre of .SC/12569 (28 October 2016) condemned the attack on a school complex in Haas village, Idlib governorate, on 26 October, which killed at least 22 children and teachers, and on a school in the western part of Aleppo on 28 October, which killed a number of children, and called for impartial investigations. SC/11921 (5 June 2015) condemned indiscriminate attacks on civilians. SC/11626 (30 October 2014) expressed support for the role and efforts of the Special Envoy for Syria, Staffan de Mistura. SC/11028 (7 June 2013) expressed grave concern over heavy fighting in Al-Qusayr and called for unhindered humanitarian access.SC/10658 (27 May 2012) condemned the 25 and 26 May attacks in El-Houleh. General Assembly Documents A/74/313 (22 August 2019) was the fourth report of the IIIM. A/RES/73/182 (17 December 2018) was a resolution on the human rights situation in Syria. A/RES/72/191 (19 December 2017) was a resolution on the human rights situation in Syria. A/RES/71/248 established the “International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic since March 2011” (IIIM). A/RES/71/203 (19 December 2016) was a resolution on the human rights situation in Syria. A/RES/70/234 (23 December 2015) was a resolution adopted by the General-Assembly’s Third Committee on the human rights situation in Syria. A/RES/69/189 (18 December 2014) condemned the Syrian regime and ISIS and expressed regret that a May 2014 Security Council draft resolution referring the situation in Syria to ICC was not adopted.

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 11 Part II: Case Studies (Syria) but it will not be denied”. Special Represen- abuse of women’s and children’s rights; the being identified, that dossiers are being built tative of the Secretary-General for Children Syrian authorities’ use of heavy weapons, up with a view to their prosecution, and that and Armed Conflict Leila Zerrougui drew cluster munitions and aerial bombardments, they will be held accountable for what they the Council’s attention to the fact that more including any indiscriminate use of ballistic have done”. He reiterated his view that the than three million children inside Syria had missiles and barrel bombs; attacks on medi- situation in Syria should be referred to the been affected by the conflict, and more than cal facilities and the starvation of civilians as a ICC. At the time, the Commission of Inquiry 600,000 children had been counted among method of combat. It also recommended that released two reports on crimes committed in the refugees in the subregion. the General Assembly submit reports of the Syria. One report found that between 8 July After the closed consultations that fol- HRC’s Commission of Inquiry on Syria to 2017 and 15 January 2018, civilians had been lowed, Council members were only able to the Security Council for appropriate action. deliberately targeted through unlawful means agree on elements to the press, apparently On 23 March 2016, the HRC adopted a and methods of warfare, medical facilities with great difficulty, in which they strongly resolution submitted by France, Germany, and schools were repeatedly attacked, and condemned incidents of sexual violence and Italy, Jordan, Kuwait, Morocco, Qatar, Saudi denial of humanitarian aid was being used violence against children, urged all parties Arabia, Turkey, the UK and the US on the as a weapon of war. The second report, of 15 to protect civilians and respect international human rights situation in Syria, with a vote March, focused on sexual and gender-based humanitarian law, and “underlined the need of 27 in favour, six against (including Secu- violence and found that this had been used by to facilitate the provision of humanitarian rity Council members China, Russia and parties to the conflict as a means to achieve assistance through the most effective ways, Venezuela) and 14 abstentions. The resolu- their objectives. It recommended that the including where appropriate across borders tion strongly condemned the continued sys- Security Council include regular briefings by in accordance with guiding principles of tematic, widespread and gross violations and the commission as part of its formal agenda, humanitarian assistance.” abuses of human rights and all violations of including on the use of sexual violence. In a final example, the 20 June 2019 annu- international humanitarian law by all parties; Against the backdrop of his statements al report of the Secretary-General on children demanded that all parties take all appropriate on Syria and these reports, al-Hussein was and armed conflict recorded that 2018 had steps to protect civilians; stressed the need to scheduled to brief the Council on the human seen the highest number of verified grave vio- pursue practical steps towards accountabil- rights situation in Syria on 19 March. France lations against children ever recorded in Syria. ity, noting the important role the ICC could requested the meeting with the support of the This finding, which continued the trend iden- play; demanded that the Syrian authorities Netherlands, Peru, Poland, Sweden, the UK tified in the 16 May 2018 annual report, was facilitate, and all other parties not hinder, and the US. However, Russia initiated a pro- not met with any reaction from the Council. the full, immediate and safe access of UN cedural vote on whether to convene the meet- The HRC was more assertive than the and humanitarian actors; and extended for ing, which fell short of the nine votes needed Security Council on the Syrian conflict, one year the mandate of the Commission of for the meeting to go ahead. Bolivia, China, adopting resolutions on the crimes com- Inquiry. The resolution also reiterated the Kazakhstan and Russia voted against having mitted and the need for accountability. On recommendation that the General Assembly the meeting, while Côte d’Ivoire, Equatorial 1 October 2015, it adopted a resolution on submit the reports of the commission to the Guinea and Ethiopia abstained. In lieu of a Syria with 29 votes in favour, six against Security Council for appropriate action. formal meeting, al-Hussein was asked to brief (including Security Council members Rus- The activity of the HRC, the reports of its members in an Arria-formula format that sia, China and Venezuela) and 12 abstentions, Commission of Inquiry, and statements made same afternoon organised by the countries including Security Council member Nigeria. by the High Commissioner for Human Rights, that had requested the meeting. This was the The resolution condemned the continued Zeid Ra’ad al-Hussein, on atrocities commit- first time a procedural vote was taken specifi- systematic, widespread and gross violations ted in Syria and the need for accountability, cally on holding a briefing by the High Com- and abuses of human rights and all violations led to an unprecedented procedural vote on a missioner in any context. of international humanitarian law by the Syr- briefing by al-Hussein on Syria in 2018. At press time, this was the most recent ian authorities and affiliated militias; terrorist At an urgent 2 March 2018 HRC debate, attempt to have the High Commissioner for acts and violence committed against civilians al-Hussein mentioned that the perpetra- Human Rights brief the Council on Syria. by ISIL, including the gross and systematic tors of crimes in Syria “must know they are Meanwhile, the HRC remains active on Syria,

UN DOCUMENTS ON SYRIA General Assembly Documents A/RES/68/182 (18 December 2013) Condemned human rights violations in Syria and urged the Security Council to take measures to end violations there. The resolution was drafted by Saudi Arabia and was passed by 127 votes in favor, 13 against and 47 abstentions. A/RES/67/262 (15 May 2013) Strongly condemned the Syrian government’s indiscriminate violence against civilian populations and welcomed the establishment of the National Coalition for Syrian Revolutionary and Opposition Forces as interlocutors needed for a political transition. Human Rights Council Documents A/HRC/42/L.22 (24 September 2019) was a resolution on human rights in Syria by a vote of 27 in favour, six against and 13 abstentions. A/HRC/42/51 (15 August 2019) was a report of the Independent International Commission of Inquiry on the Syrian Arab Republic. A/HRC/RES/39/15 (28 September 2018) was a resolution on the human rights situation in Syria. A/HRC/38/CRP.3 (20 June 2018) was a conference room paper of the Independent International Commission of Inquiry on Syria. A/HRC/38/29 (15 May 2018) was the summary report on the high-level panel discussion on violations of the human rights of children in Syria. A/HRC/RES/37/29 (23 March 2018) was a resolution extending the mandate of the Commission of Inquiry on Syria for one year. A/HRC/37/CRP.3 (15 March 2018) was a conference room paper of the Independent International Commission of Inquiry on Syria on sexual and gender-based violence. A/HRC/RES/37/1 (5 March 2018) was a resolution on the deteriorat- ing situation of human rights in Eastern Ghouta. A/HRC/31/CRP.3 (23 February 2018) was a report by the Commission of Inquiry on sexual and gender-based violence in Syria, covering March 2011 to December 2017 and based on 454 interviews. A/HRC/37/72 (1 February 2018) was the report of the Commission of Inquiry on Syria, presented at the HRC’s 37th session. A/HRC/34/64 (2 February 2017) was a report of the HRC’s Commission of Inquiry on Aleppo. A/HRC/S-25/L.1 (21 October 2016) was adopted at a special HRC session, demanding that the Syrian government and its allies end immediately all aerial bombardments of, and military flights over, Aleppo and requests the Commission of Inquiry to conduct an inquiry into the events in Aleppo and present a report to the HRC in March.

12 whatsinblue.org Security Council Report Research Report December 2019 Part II: Case Studies (Syria) adopting a resolution on 27 September 2019 text of resolution 2139 of 22 February 2014 diminished over time. deploring the fact that the conflict in Syria on humanitarian access. On 19 March 2013, the Syrian gov- continues in its ninth year with a devastating The repeated appeals of successive High ernment and opposition each accused the impact on the civilian population. The HRC’s Commissioners for Human Rights and HRC other of employing chemical weapons in Commission of Inquiry continues to report resolutions for ICC referral have been largely an attack that killed dozens in Aleppo prov- on casualties in Syria, including in Idlib and ignored by the Council. The single attempt ince. France raised the issue in the Council also in north-eastern Syria, the latter as a by the Council to refer the situation in Syria under “other matters” on 20 March. At the result of the ongoing Turkish offensive against to the ICC came after an 8 April 2014 brief- media stakeout following those consulta- Kurdish forces. In a press briefing on 15 ing by Pillay, where she told Council mem- tions, Security Council president Ambas- October, a spokesperson for the High Com- bers that there was “massive evidence” that sador Vitaly Churkin (Russia) said that the missioner for Human Rights (now Michelle war crimes and crimes against humanity had discussions in the Council had included Bachelet) noted that “since the Turkish mili- been committed and indicated responsibility “such exotic proposals” as an investigation of tary offensive began on 9 October, we have at the highest level. Once again, she called for “rumours” of other uses of chemical weap- verified a number of civilian casualties each a referral to the ICC, adding that the govern- ons inside Syria. Difficulties in addressing day as a result of airstrikes, ground-based ment was responsible for most violations and the use of chemical weapons were made evi- strikes and sniper fire.” that her office could identify the perpetrators dent when Council members failed to agree in the event of a referral. on a statement condemning such attacks Attempts at accountability mechanisms: The collapse of peace talks between after a chemical attack in Ghouta, on the the ICC referral the Syrian government and its opponents outskirts of Damascus, killed hundreds of From the early stages of the conflict, there around that time contributed towards a people on 21 August. were calls for the Security Council to act on shift by France and the US, as well as many A first sign of progress occurred in the accountability, particularly to refer the situa- other Council members, towards taking lead-up to possible unilateral US military tion in Syria to the ICC. up Pillay’s call. Russia, on the other hand, strikes on Syria over the government’s use The General Assembly resolutions of 15 characterised the idea of an ICC referral of chemical weapons, when, on 9 September May and 18 December 2013 suggested that as poorly timed and counterproductive. On 2013, Russia proposed that Syrian chemical the Council should consider referring the 22 May 2014, China and Russia cast their weapons stocks be put under international situation to the ICC, noting the repeated fourth joint veto on Syria and blocked the control. On 14 September, Russia and the encouragement by High Commissioner Pil- French draft resolution referring Syria to US agreed to a framework for the elimina- lay to do so. It also called on the Council to the ICC, which had been co-sponsored by tion of such weapons. On 27 September, take appropriate action on accountability. 65 member states. All other Council mem- the Security Council met at ministerial As the conflict progressed and these calls bers voted in favour of the referral. level and adopted resolution 2118, which continued, with no political solution in sight, Though the General Assembly on 18 required the verification and destruction of some Council members sought to recall the December 2014 expressed its regret that the Syria’s chemical weapons by mid-2014. relevance of the ICC to the situation in Syria draft resolution had failed, and calls contin- Security Council members were briefed and, eventually, to refer the situation to the ued by the High Commissioner and others on 16 December 2013 on the final report of ICC. On 14 January 2013 Switzerland sub- to refer the situation to the ICC, Council a UN Mission to Investigate Allegations of mitted a letter to the Council, co-signed by members have made no further attempts to the Use of Chemical Weapons in the Syr- 56 other member states, requesting that it advance the ICC option. ian Arab Republic, established by the Sec- refer the situation as of March 2011 to the retary-General in March, that included the ICC. (A similar letter by Switzerland, on Accountability for chemical weapons results of the investigation into seven allega- behalf of 58 member states, was sent to the attacks tions of chemical weapons use in Syria. The Council on 19 May 2014). In 2013, an alarming new element of the con- report reiterated that there was convincing Within the Council, however, the mere flict appeared in the form of chemical warfare. evidence that chemical weapons had been mention of the ICC in the context of Syria The Council has been active on the chemi- used on a relatively large scale in Ghouta on remained divisive: to facilitate agreement, cal weapons track with some success, includ- 21 August 2013. The report also described ICC references were deleted from the final ing on accountability, though this consensus credible evidence of chemical weapons use

UN DOCUMENTS ON SYRIA Human Rights Council Documents A/HRC/33/55 (11 August 2016) was the report of the Commission of Inquiry on Syria considered by the HRC during its 33rd session in September. A/HRC/RES/32/25 (1 July 2016) was an HRC resolution that condemned the continued systematic, widespread and gross violations and abuses of human rights and all violations of international humanitarian law by the Syrian authorities and affiliated militias and the terrorist acts committed by ISIL and Al-Nusra.A/HRC/32/CRP.2 (16 June 2016) was a report of the Commission of Inquiry on Syria, which found that ISIL had committed, and continued to commit, the crime of genocide against the Yazidis. A/HRC/RES/31/17 (23 March 2016) was an HRC resolution which strongly condemned the continued systematic, widespread and gross violations and abuses of human rights and all violations of inter- national humanitarian law by all parties; demanded that all parties take all appropriate steps to protect civilians; stressed the need to pursue practical steps towards accountability, and noting the important role the ICC could play. A/HRC/RES/30/10 (1 October 2015) was an HRC resolution which condemned the continued systematic, widespread and gross violations and abuses of human rights and all violations of international humanitarian law by the Syrian authorities and affiliated militias, and terrorist acts and violence committed against civilians by ISIL. A/HRC/29/CRP.3 (23 June 2015) was an oral update of the Commission of Inquiry on Syria. A/HRC/28/69 (5 February 2015) was the ninth report of the Commission of Inquiry on Syria. A/HRC/RES/27/16 (25 September 2014) was an HRC resolution that strongly condemned the lack of cooperation by the Syrian authorities with the Commission of Inquiry. A/HRC/RES/26/23 (27 June 2014) condemned all violations and abuses committed against the Syrian civilian population and demanded Syria’s cooperation with the Commission of Inquiry. A/HRC/RES/23/1 (29 May 2013) requested the Commission of Inquiry to investigate the events in Al Qusayr; it was adopted following a three-hour urgent debate held at the request of Qatar, Turkey and the US. A/HRC/25/65 (12 February 2014) was a report by the Commission of Inquiry on Syria saying that absolute impunity pervades the Syrian conflict and that it was for the Security Council to make the pursuit of justice possible, including an ICC referral.

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 13 Part II: Case Studies (Syria) earlier in 2013 in other locations in Syria. on 21 April 2014) and to ISIL for two (Um- would investigate the incident. Nevertheless, while the Council met on a Hawsh on 15-16 September 2016 and Mar- On 6 April, the US carried out airstrikes monthly basis to discuss the use of chemical ea on 21 August 2015). on the airbase from which the Khan weapons, they did little else in this regard until As the JIM began to assign responsibility Shaykun attack was purportedly carried out. 30 December 2014,when the P3 (France, the in 2016, Russia questioned its working meth- On 12 April, Russia vetoed a draft resolution UK and the US), along with Australia, Jordan, ods, criticising what it considered unsub- put forth by the UK, which condemned the Lithuania, Luxembourg and the Republic of stantiated conclusions in the reports. Russia chemical attack on Khan Shaykhun and did Korea, transmitted to the Security Council also maintained that these findings were not not mention the US attacks. In addition to a report on Syria’s use of chlorine bombs definitive, pending investigations by the Syr- the Russian veto, the draft received a nega- by the Fact-Finding Mission (FFM) estab- ian government, and could not be the basis tive vote from Bolivia, and abstentions from lished by the Organisation for the Prohibition for accountability measures. More broadly, China, Ethiopia and Kazakhstan. of Chemical Weapons (OPCW). The report since the beginning of the JIM’s mandate, The Council proved unable to renew the concluded with “a high degree of confidence Russia and China advocated for an increased JIM’s mandate in 2017. On 2 November that chlorine has been used as a weapon”, focus on the use of chemical weapons by ter- 2017, the US and Russia circulated compet- and that there was evidence that chlorine had rorist groups, and circulated a draft resolu- ing draft resolutions on the renewal. The ini- been consistently and repeatedly used in bar- tion to that effect in April 2016, although this tial US draft characterised the information rel bombs dropped from helicopters. While was never put to a vote. obtained by the JIM as constituting “suffi- the FFM did not have a mandate to attribute Other Council members sought to take cient, credible and reliable evidence to reach blame, its report pointed in an obvious direc- further action based on the JIM’s findings. conclusions on those responsible for the use tion, as only the government had aerial capac- On 19 December 2016, France and the of chemical weapons”, while the Russian text ity and only rebel-held areas were targeted. UK circulated a draft resolution seeking to cited its methodological concerns. Though Frustration was mounting among several impose sanctions on the Syrian government Russia refused to engage on the US draft, Council members by summer 2015 after the for the use of chemical weapons against its there were several rounds of negotiations matter of chlorine bomb attacks had been own population. Eventually, on 28 February on that draft with other members. On 16 raised regularly but fruitlessly for over a year 2017, China and Russia vetoed a P3-draft- November 2017, the US draft was vetoed during Council members’ monthly consul- ed resolution that would have imposed by Russia, and the Russian draft received tations on Syrian chemical weapons. After sanctions on perpetrators identified by the only four favourable votes (Bolivia, China, almost four months of P5 negotiations, large- JIM’s reports. Kazakhstan and Russia). ly between Russia and the US, the Council A new chemical weapons attack on the Immediately after the failed votes, Japan adopted resolution 2235 on 7 August 2015 Khan Shaykhun area of Idlib on 4 April circulated a draft that would have extend- establishing the UN-OPCW Joint Investiga- 2017, killing over 70 people, prompted a ed the JIM’s mandate for one month while tive Mechanism (JIM) to determine respon- P3 draft resolution. The draft emphasised requesting the UN Secretary-General, in sibility for the use of chemical weapons that the cooperation required with the JIM coordination with the OPCW, to submit pro- in Syria. This was to allow the Council to included Syria’s obligation to provide infor- posals to the Council for the structure and receive explicit information identifying the mation on air operations (such as flight plans methodology of the JIM “reflecting views of actors responsible for the use of chemical and flight logs), names of all individuals in Security Council members”. Twelve mem- weapons in Syria. The JIM was established command of any helicopter squadrons, and bers voted for the draft resolution on 17 for a period of one year. Its mandate to attri- access to air bases from which the JIM or the November, but Russia, which had already sig- bute responsibility was tied closely to the FFM believed chemical weapons attacks may nalled that it did not support the draft, cast its OPCW FFM determination of chemical have been launched, as well as responses to 11th Syria veto, and the JIM’s mandate ended. weapons use. In addition, the JIM was not requests for meetings with generals and other Tensions among the permanent members limited to relying on information and evi- officers. An alternative Russian draft resolu- heightened in April 2018 after the reported dence obtained or prepared by the FFM. tion expressed deep concern regarding the use of chemical weapons in Douma in East- The JIM would eventually produce sev- “alleged incident with…chemical weapons”, ern Ghouta on 7 April. The attack prompted en reports, ascribing responsibility to the calling for a full-scale investigation as soon a revival of draft resolutions to establish an Syrian government for four attacks (Khan as possible while requesting the OPCW to investigation mechanism that had been cir- Shaykhun on 4 April 2017, Qmenas and share with the Council, for its consideration, culated earlier in the year but had not been Sarmin on 16 March 2015, and Talmenes the “personal composition” of the team that pursued, intended to fill the vacuum left by

UN DOCUMENTS ON SYRIA Human Rights Council Documents A/HRC/33/55 (11 August 2016) was the report of the Commission of Inquiry on Syria considered by the HRC during its 33rd session in September. A/HRC/RES/32/25 (1 July 2016) was an HRC resolution that condemned the continued systematic, widespread and gross violations and abuses of human rights and all violations of international humanitarian law by the Syrian authorities and affiliated militias and the terrorist acts committed by ISIL and Al-Nusra.A/HRC/32/CRP.2 (16 June 2016) was a report of the Commission of Inquiry on Syria, which found that ISIL had committed, and continued to commit, the crime of genocide against the Yazidis. A/HRC/RES/31/17 (23 March 2016) was an HRC resolution which strongly condemned the continued systematic, widespread and gross violations and abuses of human rights and all violations of inter- national humanitarian law by all parties; demanded that all parties take all appropriate steps to protect civilians; stressed the need to pursue practical steps towards accountability, and noting the important role the ICC could play. A/HRC/RES/30/10 (1 October 2015) was an HRC resolution which condemned the continued systematic, widespread and gross violations and abuses of human rights and all violations of international humanitarian law by the Syrian authorities and affiliated militias, and terrorist acts and violence committed against civilians by ISIL. A/HRC/29/CRP.3 (23 June 2015) was an oral update of the Commission of Inquiry on Syria. A/HRC/28/69 (5 February 2015) was the ninth report of the Commission of Inquiry on Syria. A/HRC/RES/27/16 (25 September 2014) was an HRC resolution that strongly condemned the lack of cooperation by the Syrian authorities with the Commission of Inquiry. A/HRC/RES/26/23 (27 June 2014) condemned all violations and abuses committed against the Syrian civilian population and demanded Syria’s cooperation with the Commission of Inquiry.

14 whatsinblue.org Security Council Report Research Report December 2019 Part II: Case Studies (Syria) the failure to renew the mandate of the JIM. and security – and presented them as a Rus- On 4 March 2019, the Secretary-Gen- A Russian draft, first circulated on 23 Jan- sian draft. This second Russian draft resolu- eral submitted the FFM report on Douma, uary, proposed to establish the UN Indepen- tion was also put to a vote on 10 April, but which concluded that there are reasonable dent Mechanism of Investigation (UNIMI) only received five affirmative votes. grounds to believe that chlorine was used as for a period of one year, in coordination with At a meeting held the day before the 10 a weapon there on 7 April 2018. the OPCW. It urged UNIMI to hold “impar- April votes, US Ambassador Nikki Haley said: tial, independent, professional and credible” “Russia’s obstructionism will not continue Interaction with the General Assembly investigations and stressed that the Security to hold us hostage when we are confronted The General Assembly has considered the Council would thoroughly assess UNIMI’s with an attack like this one. The United States situation in Syria regularly, against the conclusions. Some Council members raised is determined to see that the monster who backdrop of the recurrent inability of Coun- concerns that the draft did not mandate the dropped chemical weapons on the Syrian cil members to act. The Assembly has called proposed mechanism to assign accountability people [is] held to account... Important deci- for more Council action on Syria, includ- for the use of chemical weapons (leaving such sions are being weighed even as we speak”. ing on matters of accountability, and for the decisions to the Council instead) and that it And indeed, on 13 April 2018, the US, along Council to consider and act on the input would require on-site visits for reaching con- with France and the UK, carried out more from the HRC, a subsidiary body of the clusions, when such visits were in many cases than 100 airstrikes against Syrian military General Assembly. impossible. The Russian draft also stressed facilities that were reportedly involved in the As mentioned above, the General Assem- the need for UNIMI to establish its findings storage and production of chemical weap- bly twice requested the Security Council to “beyond any reasonable doubt”, raising the ons. Following the attack, Russia requested consider an ICC referral. After the Council standard of proof previously required of the a briefing by the Secretary-General the next failed to adopt the draft resolution referring JIM, which was “overwhelming”, “substan- morning. the situation in Syria to the ICC, the General tial” or “sufficient” evidence. On 10 April, the There was considerable discussion dur- Assembly expressed regret over this failure Russian draft was put to a vote and failed to ing the session about the responsibilities of in a resolution on 18 December 2014. The be adopted, receiving six affirmative votes. states under international law. Some mem- resolution emphasised the need to ensure In parallel, the US had circulated its own bers (Bolivia, China, and Russia, among that all those responsible for violations of draft resolution in late February. The US draft others) criticised the airstrikes as a viola- international humanitarian law or violations was also to establish a UNIMI for one year, tion of the sovereignty of a member state and abuses of human rights law be held to based on the recommendations provided by and an illegal use of force. Other Council account through appropriate fair and inde- the UN Secretary-General, in coordination members justified the airstrikes (France, the pendent domestic or international criminal with the OPCW, to identify those responsible Netherlands, Poland, Sweden and the US), justice mechanisms, and called on the Secu- for the use of chemical weapons in Syria. The while the UK explicitly maintained that the rity Council to take appropriate action to US draft further condemned the alleged use attacks were legal as a humanitarian inter- ensure accountability. This General Assem- of chemical weapons in Douma and demand- vention, noting that it was hard to believe bly has since repeated this message annually. ed that all parties in Syria provide free and that it could be within the purposes of the The General Assembly has also taken safe access without delay to any sites deemed UN Charter to use or condone the use of practical measures, most notably the estab- relevant by the OPCW FFM. Likewise put chemical weapons. lishment of the International, Impartial and to a vote on 10 April, the US draft resolu- A Russian draft resolution tabled at the Independent Mechanism (IIIM) for Syria. As tion was vetoed by Russia, as it continued to end of the meeting condemned the “aggres- the Council continued to waver on account- oppose the idea that UNIMI would assign sion” against Syria by the US and its allies ability, UN member states looked elsewhere. responsibility for chemical weapons attacks. in violation of international law and the At the initiative of Liechtenstein and Can- China abstained. UN Charter. The draft failed to garner nine ada, the General Assembly adopted a reso- Seeking common ground in the Coun- votes and received negative votes from all lution on 21 December 2016 to establish cil, Sweden had circulated draft elements P3 members. Only three Council members the “International, Impartial and Indepen- for support to the FFM investigation into voted in favour of the draft (Bolivia, China dent Mechanism to assist in the investigation the alleged chemical weapons incident in and Russia), while four abstained (Equato- and prosecution of persons responsible for Douma. Russia then substantially amended rial Guinea, Ethiopia, Kazakhstan and Peru). the most serious crimes under International those elements – for example, deleting a ref- The remaining Council members voted Law committed in the Syrian Arab Repub- erence to the situation as a threat to peace against the draft. lic since March 2011”. On 3 July 2017, the

UN DOCUMENTS ON SYRIA Human Rights Council Documents A/HRC/RES/23/1 (29 May 2013) requested the Commission of Inquiry to investigate the events in Al Qusayr; it was adopted following a three-hour urgent debate held at the request of Qatar, Turkey and the US. A/HRC/25/65 (12 February 2014) was a report by the Commission of Inquiry on Syria saying that absolute impunity pervades the Syrian conflict and that it was for the Security Council to make the pursuit of justice possible, including an ICC referral.A/HRC/21/50 (16 August 2012) this was the first substantive report by the Commission of Inquiry on Syria. A/HRC/RES/20/22 (6 July 2012) condemned the gross human rights violations and indiscriminate targeting of civilians in Syria by government authorities and the . S-17/1 (22 August 2011) established the Independent International Commission of Inquiry on Syria. A/HRC/RES/S-16/1 (29 April 2011) requested an investigative mission to Syria, with preliminary findings expected in June and a follow-up report in September. Draft Resolutions That Were Not Adopted S/2019/757 (19 September 2019) was a draft resolution on Idlib that failed to be adopted. S/2019/756 (19 September 2019) was a draft resolution on Idlib that was vetoed by Russia and China. S/2017/970 (17 November 2017) was a Japanese draft extending the JIM that was vetoed by Russia. S/2017/968 (16 November 2017) was a Russian draft extending the JIM that was put to a vote by Bolivia but did not secure nine votes. S/2017/962 (16 November 2017) was the US draft to extend the JIM, which was vetoed by Russia. S/2017/884 (24 October 2017) was a draft resolution renewing the JIM that was vetoed by Russia. S/2017/172 (28 February 2017) was a draft resolution on chemical weapons by China and Russia, as well as receiving the negative vote of Bolivia and the abstentions of Egypt, Ethiopia and Kazakhstan.

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 15 Part II: Case Studies (Syria)

Secretary-General appointed Catherine Mar- the Syrian government’s responsibility, Rus- for crimes committed in Syria have made chi-Uhel as head of the IIIM. The IIIM is sia moved to end the JIM. little headway. This was demonstrated by the to collect, preserve and analyse evidence of Elected members have been able to ini- vetoes on an ICC referral and the Council’s violations of international humanitarian law tiate Council action with respect to some inability to agree on strong language in its and human rights violations and abuses and aspects of the conflict, especially the human- outcome documents and press statements to prepare files in order to facilitate criminal itarian track, despite political pressure from over identifying those likely to have been proceedings in national, regional or interna- the P5 who at times have preferred a more responsible for mass atrocities and interna- tional courts or tribunals that have, or may in passive approach. Elected members also tional crimes. In particular, any specific and the future have, jurisdiction over these crimes, worked to reconcile or mitigate differences significant language directed at the Syrian in accordance with international standards. among permanent members on issues such government for its responsibility for viola- It is thus not a court or a prosecutor’s office, as the JIM and accountability measures in tions of international humanitarian law and but a body that preserves and analyses infor- respect of chemical weapons attacks. At other gross violations of human rights law was mation for possible future prosecutions. At times, elected members sided with a particu- quashed by Russia, usually with the backing present, according to its latest report of 22 lar permanent member or disagreed among of China and, at times, other Council mem- August 2019, the IIIM is continuously col- themselves as to the usefulness of attempting bers. Furthermore, limited progress on the lecting and analysing vast amounts of data to come between two permanent members chemical weapons track also highlighted the from Syria on alleged crimes that have been with opposing positions. lack of Council action to curb other illegal committed, preparing criminal case files for The Council’s success in agreeing on deliv- methods of war, such as the use of barrel future use, and responding to information ery of cross-border humanitarian assistance bombs on the civilian population. requests from national jurisdictions. came with some costs, including toning down The Council remains divided and seems language on accountability and avoiding any incapable of rising to the needs of critical OBSERVATIONS concrete action on this front. The Council aspects of the Syrian conflict. It has not been Since the conflict in Syria began, the Securi- has been able to play only a limited role with able to seriously consider taking enforce- ty Council has repeatedly shown its inability respect to the situations in Aleppo, Ghouta ment action in an attempt to end or limit the to play a significant role in either ending the and Idlib. Regarding Aleppo, it was only able consequences of the fighting. In light of this, crisis or in establishing accountability mech- to assert itself late in the process, after bilat- member states and other actors have looked anisms for mass atrocities because of ongo- eral agreements were reached between Russia to other bodies such as the General Assembly ing divisions among the permanent mem- and Turkey to assure humanitarian corridors and the HRC to provide solutions. bers, four of whom are actively involved in and access. Syria ignored its demand for a Syria’s political track has been a matter the conflict. Elected members have become Ghouta ceasefire, without repercussions. In of discussion between international actors increasingly frustrated, compounded by Idlib, it is likely that the international atten- in Geneva, Astana and elsewhere. Enforce- their frequent exclusion from the related tion, including by Council members in sev- ment actions have also moved outside the negotiations. Syria has also highlighted the eral meetings, played a role in the agreement Council: other actors, including permanent difficulty for some elected members to lead between Russia and Turkey on demilitarised members of the Council, have taken it upon decisive Council action on a conflict where zones, which provided temporary relief. This themselves unilaterally and without Security the national interests of permanent mem- led to the hope that when the international Council authorisation to punish the Syrian bers are at play. community is able to coalesce around a par- government for its repeated use of chemical Such progress as there has been concern- ticular situation at a particular moment, this weapons against civilians, including by legally ing accountability mechanisms in respect of can produce enough pressure on state actors, debatable use of force, such as the April 2018 the use of chemical weapons in Syria was a including the permanent members, to cur- aerial attack by the P3 in Syria. result of both military and political pressure tail some activities. Nevertheless, the reprieve Similarly, the Council played a very limited on the Syrian government by several mem- from intense fighting has proven temporary, role with respect to accountability measures. ber states, particularly by the P3, which then and renewed violence has resulted in disas- Another UN organ, the General Assembly, manifested itself in Council action. Russia trous repercussions for civilians. For its part moved to fill this void, regularly calling for may have believed that this particular egre- the Council still struggles to play a significant practical accountability measures in several gious aspect of the conflict could be con- role in addressing such situations, as shown resolutions and establishing the IIIM. tained and treated separately from the wider by the failed 19 September 2019 attempt to The HRC has also been highly active on context of the war. It may be that Russia was impose a ceasefire. the Syria file, adopting numerous resolu- also of the view that the mechanisms would Besides some progress, for a time, on tions demanding the end of impunity in Syr- enable Syria to avoid deeper consequences; accountability for chemical attacks, other ia and mandating thorough investigations of however, once the JIM pointed critically at attempts by the Council to end impunity events on the ground. The Commission of

.UN DOCUMENTS ON SYRIA Draft Resolutions That Were Not Adopted S/2016/846 (8 October 2016) was a draft resolution tabled by France and Spain that called for an end to all military flights over Aleppo, which had 43 co-sponsors. Eleven Council members voted in favour; Russia cast its fifth veto on a Syria draft resolution and China abstained, the first time it had not vetoed a Syria draft resolution alongside Russia. Elected member Venezuela voted no and elected member Angola abstained. S/2014/348 (22 May 2014) was a draft resolution that would have referred Syria to the ICC. The draft was vetoed by China and Russia. S/2012/538 (19 July 2012) was a draft resolution that would have stipulated that Syrian authorities cease troop movements and the use of heavy weapons in population centres. The draft was vetoed by China and Russia. S/2011/612 (4 October 2011) was a draft resolution that called for accountability for human rights violations and would have condemned the use of force by Syrian authorities. The draft was vetoed by China and Russia.

16 whatsinblue.org Security Council Report Research Report December 2019 Part II: Case Studies (Syria)

Inquiry established by the HRC continues in regions bordering Ukraine. In subsequent referring to letters sent to the Council by to report on mass atrocities being commit- days, militias loyal to Russia seized govern- Ukraine and Russia. Nevertheless, in the ted in Syria and to demand accountability. ment buildings and airports in the Crimean first few years of the conflict, the Council, at With no formal link between the two bodies, cities of Simferopol and Sevastopol. the initiative of Council members Lithuania the Council’s interaction with the commis- On 1 March, Russia commenced a mili- and then Ukraine, met regularly to discuss sion is dependent on the initiative of Council tary operation in Ukraine, saying that this the situation in Ukraine. members, both in terms of the reports of the was to protect Russian citizens in the Crime- With the Council unable to take mean- commission and meetings with its members. an Peninsula. Ukraine described the situation ingful action due to a permanent member’s Successive High Commissioners for Human as an invasion and occupation. On 6 March involvement in the conflict, a difficulty -evi Rights have repeatedly pointed out the need the parliament of the “Autonomous Repub- dent from the outset, Ukraine eventually to end atrocities and bring perpetrators to lic of Crimea”, the local Crimean legislature became peripheral to the Council’s agenda. justice in Syria, calling on the Council to under Ukrainian law, voted to secede from On 15 March 2014, on the eve of the Crime- act by referring the situation to the ICC or Ukraine and become part of Russia. Accord- an referendum, Russia vetoed a draft resolu- through other measures. Council members ing to the official results of a referendum on tion proposed by the US that reaffirmed the have challenged and curtailed the High Com- the status of Crimea held on 16 March, over sovereignty, unity and territorial integrity of missioner’s ability to provide information to 80 percent of Crimeans favoured joining Ukraine. The draft called on Ukraine to con- the Council. Russia. Despite targeted travel and finan- tinue to respect and uphold its obligations The Security Council’s inability to take cial sanctions imposed by the EU and the under international law and to protect the effective action has created a void that no US, the formal annexation of Crimea and rights of all persons in Ukraine, including other international body can fill, that of end- Sevastopol (which are distinct entities under the rights of persons belonging to minorities. ing the conflict and bringing justice to the Ukrainian law) was finalised on 21 March At present, this remains the only attempt by people of Syria. 2014 when President Vladimir Putin signed the Council to address the issue of Ukrai- into law the constitutional amendments add- nian territorial integrity. A resolution reaf- UKRAINE ing the two entities to the Russian Federation. firming the territorial integrity of Ukraine Intimidation has continued against those was passed by the General Assembly twelve BACKGROUND who opposed the referendum and Russia’s days later on 27 March 2014. Russia annexed Crimea in 2014, and a war annexation, in particular the Crimean Tatars. At the time of writing, the last Council between Ukrainian forces and pro-Russian The situation in eastern Ukraine remains discussion on the conflict in Ukraine was on separatists in eastern Ukraine that began the unresolved. Despite several ceasefire agree- 16 July 2019, in a briefing by Under-Secre- same year has killed over 13,000 people and ments between the sides during the con- tary-General for Political and Peacebuilding injured 25,000 others. By September 2019, flict, notably the Minsk Agreement of 12 Affairs Rosemary DiCarlo and OSCE High OCHA estimated that 3,000 civilians had died February 2015, endorsed by the Council in Commissioner on National Minorities Lam- in the conflict, with approximately 3.5 million resolution 2202, fighting across or near the berto Zannier. The meeting, on the wider people in need of humanitarian assistance and contact line separating the two sides contin- conflict, came after an initial Russian attempt 1.5 million people internally displaced. ues to threaten civilian lives and property. to have the Council discuss the Ukrainian The crisis can be traced back to 21 According to the Organization for Security language law that, it claims, runs counter to November 2013. In protest against Presi- and Co-operation in (OSCE) Spe- the spirit of the Minsk agreements and reso- dent Viktor Yanukovych’s decision not to cial Monitoring Mission, at least 212 civil- lution 2202 by discriminating against Rus- sign an association agreement with the EU, ians were injured or killed in 2018, mostly sian speakers, a request the Council rejected crowds took to Kyiv’s Independence Square from shelling and light weapons fire. At 28 in a procedural vote on 20 May 2019. (Maidan Nezalezhnosti) in the hundreds of October 2019, the mission had recorded 137 Accountability for human rights and inter- thousands. Violence erupted on 23 Novem- civilian casualties, including 16 deaths, and national humanitarian law violations has not ber as riot police dispersed the crowd with significant damage to civilian infrastructure, been an area of focus for the Council in its extreme force, leaving 121 protesters dead including to 11 schools and four kindergar- consideration of the Ukrainian conflict (the and others unaccounted for. tens, by shelling and small-arms fire. situation is different with respect to the mat- On 22 February 2014, Yanukovych fled ter of Malaysia Airlines flight MH17, dis- Kyiv with Russian assistance after signing a THE SECURITY COUNCIL AND cussed below). Though regularly informed deal with the opposition to end the political UKRAINE of the ongoing human rights violations, the crisis, brokered by France, Germany, Poland Council did not move to address them. and the EU. The Ukrainian parliament (Verk- Accountability and the Ukrainian The Office of the High Commission- hovna Rada) voted to remove Yanukovych and conflict er for Human Rights, at the invitation of on 23 February granted expanded powers to The political sensitivities around the conflict the government of Ukraine, deployed the its interim speaker, Oleksandr Turchynov, to are made clear by the fact that Ukraine as UN Human Rights Monitoring Mission in serve as acting president. Two days later, Rus- such has never been on the Council’s agenda Ukraine (HRMMU) on 14 March 2014 to sia carried out a large-scale military exercise but has been discussed under agenda items monitor and report on the human rights

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 17 Part II: Case Studies (Ukraine) situation, recommend concrete follow-up more than 200 injured, most of them pro- tried to gain access to the site, but according actions to address human rights concerns, Russian activists, in clashes between politi- to media reports, their initial attempts were prevent human rights violations, and conduct cal factions in Odessa. To date, according to blocked by separatists in control of the area. a mapping of alleged human rights violations. OHCHR, those responsible have not been On 20 July, OSCE monitors were finally Between March 2014 and the end of 2015, brought to justice, with some of the perpe- allowed to inspect the crash site. In the Assistant Secretary-General for Human trators yet to be identified and investigations meantime, the separatists had collected the Rights Ivan Šimonović briefed the Coun- conducted by Ukrainian authorities having bodies and stored them in refrigerated train cil eight times on the situation in Ukraine. been deemed ineffective by the HRMMU by wagons in Torez, a town near the crash site. Šimonović and others expressed concern September 2019. Council members did issue As news of the crash broke, the UK, sup- about alleged gross human rights violations, a press statement on 13 January 2015, after ported by Lithuania, requested an urgent including the excessive use of force and extra- the shelling of a passenger bus in Volnovakha, Council meeting on Ukraine, which was judicial killings, torture, disappearances, and Donetsk, in which 11 civilians were killed held the following day. A press statement arbitrary arrests and detentions. Drawing on and 17 injured, condemning the act and calling for a “full, thorough and indepen- the work of the HRMMU, he stressed the calling for an investigation. Thirty people dent investigation” was adopted just before need to guarantee full respect for the rule of were killed and more than 100 were injured the 18 July meeting. Council members at the law and human rights, ensuring accountabil- on 24 January 2015 in a rocket attack on meeting generally condemned the incident ity for human rights violations, guaranteeing the city of Mariupol. Secretary-General Ban and called for an immediate international minority rights, and investigating violations Ki-moon condemned the attack, also not- investigation. Some members, most notably committed during the protests in Kyiv and ing that launching rockets indiscriminately the P3, EU members and Australia, directly ahead of the referendum in Crimea. into civilian areas could constitute a viola- blamed Russia for providing separatists with The Council continued to receive regu- tion of international humanitarian law. After sophisticated weapons capable of down- lar updates on the human rights situation, deeper analysis, the OSCE’s Special Moni- ing an airplane at high altitude. Russia, on but its attention was largely focused on the toring Mission reported that the rockets had the other hand, questioned the decision of evolving humanitarian and political crises come from rebel-held areas in the Donetsk Ukrainian authorities to allow commercial in the country, albeit with little progress on region. Lithuania, the UK, and the US draft- aircraft to fly over an area of active military either. Beginning in 2016, discussions on the ed a press statement condemning the attack operations, saying that Ukraine was respon- human rights situation in Crimea could no on Mariupol. However, the Council failed to sible for monitoring the safety of its airspace. longer take place in public briefings, due to adopt the statement due to Russia’s disagree- Australia issued a statement indicating that strong objections from Russia, and were con- ment with the proposed language. the press statement by Council members was fined to the Arria-formula format. An Arria- insufficient and that it planned to propose a formula meeting on human rights, media Accountability and Malaysia Airlines draft resolution on the incident. freedom, and the situation of national minor- flight MH17 Three days later, the Council condemned ities in Crimea and eastern Ukraine was held Accountability was integral to the Council’s the downing of the plane and called for a on 19 March 2015 at the initiative of Lithu- consideration of the downing of Malay- “full, thorough and independent” interna- ania. Another, on impunity for human rights sia Airlines flight MH17 on 17 July 2014. tional investigation in accordance with inter- violations in Crimea, was held on 18 March Flight MH17, a codeshare with KLM Royal national civil aviation guidelines in resolu- 2016, initiated by Ukraine and focusing spe- Dutch Airlines as KL4103, was proceeding tion 2166 of 21 July 2014. The resolution cifically on violations against the Crimean from Amsterdam to Kuala Lumpur when demanded that those responsible be held Tatars. During this Arria-formula meeting, it crashed close to the Russian border in accountable and called on all states and the High Commissioner for Human Rights the area of eastern Ukraine where there actors in the region to cooperate fully with briefed Council members on Ukraine for the had been heavy fighting between Ukrainian the investigation, and assist it, if requested. first time. Similar Arria-formula meetings on government forces and separatists. All 298 It also requested the Secretary-General to Crimea and the Tatars were convened on 15 people aboard were killed. MH17 carried “identify possible options for UN support March 2018 and 2019, respectively. individuals of many nationalities, includ- to the investigation and report to the Secu- Even when the Council was still actively ing Australia, Belgium, , Indonesia, rity Council on relevant developments”. following the conflict in 2014-2015, it gave Malaysia, New Zealand, the Philippines, The Department of Political Affairs briefed little attention to attacks against civilians. The Viet Nam and the Netherlands, the last- the Council on the investigation twice (18 Council did not react to an incident on 2 May named losing 193 of its citizens. Shortly August and 19 September 2014), but the 2014 in which 48 people were killed and after the crash, representatives of the OSCE Secretariat did not produce a report on

UN DOCUMENTS ON UKRAINE Security Council Resolutions S/RES/2202 (17 February 2015) was a resolution that endorsed the “Package of measures for the Implementation of the Minsk Agreements” signed on 12 February 2015. S/RES/2166 (21 July 2014) condemned the downing of Malaysia Airlines flight 17 and called for an investigation of the crash. Security Council Presidential Statement S/PRST/2018/12 (6 June 2018) expressed concern over the worsening security situation in eastern Ukraine and condemned continuous violations of the ceasefire, including the use of heavy weapons.Security Council Letters S/2015/528 (10 July 2015) was a letter to the President of the Security Council from Australia, Belgium, Malaysia, the Netherlands and Ukraine requesting the Council to establish a tribunal to prosecute persons connected with the downing of MH17. S/2014/657 (9 September 2014) was a letter to the President of the Security Council from the Netherlands, containing the preliminary report of the investigation into the downing of flight MH17. S/2014/136 (28 February 2014) was a letter to the President of the Security Council from Ukraine, requesting an urgent meeting of the Security Council and citing the situation in Crimea as a threat to the territorial integrity of Ukraine. Security Council Meeting Records S/PV.8575 (16 July 2019) was a briefing on the situation in Ukraine by Under-Secretary-General for Political and Peacebuilding Affairs Rosemary DiCarlo and OSCE High Commissioner on National Minorities Lamberto Zannier. .

18 whatsinblue.org Security Council Report Research Report December 2019 Part II: Case Studies (Ukraine) options for UN support to an international to bind member states to cooperate with the presented its factual findings on the incident investigation, apparently due to the politi- investigation and the tribunal. on 24 May 2018. The JIT determined that cal sensitivities of the issue among Coun- From the outset, Russia voiced its oppo- the rocket system used to down flight MH17 cil members and the productive work of the sition to the proposal, taking the view that originated from the Russian 53rd Anti-Air- existing investigations, discussed below. resolution 2166 provided an optimal frame- craft Military Brigade. In a joint statement Ukraine then asked the Dutch Safety work for the investigation of the MH17 inci- issued on 25 May, Australia and the Nether- Board (DSB) to conduct a technical investi- dent. On 20 July, Council members held lands declared that they held Russia respon- gation on its behalf, coordinating a team of consultations at Russia’s request on the sible for the incident. They also called on international investigators. On 9 September MH17 incident and the follow-up to resolu- Russia to enter into a dialogue on the issue 2014, the DSB issued a preliminary inves- tion 2166. At the meeting, Russia presented and said that the next possible action would tigation report, which indicated that the an alternative draft resolution calling for a be to present the case to an international airplane had broken up in the air after suf- greater role for the Secretary-General and court or organisation for judgment. Russia fering “impact by a large number of high- the International Civil Aviation Organiza- responded that evidence did not exist to sup- energy objects from outside the aircraft”. tion in investigating the incident. It also port the findings of the JIT. The report did not assign responsibility for called for greater transparency in the ongo- In a 29 May 2018 meeting on Ukraine, downing the plane. ing investigations, especially the JIT investi- several Council members, including France, A criminal investigation was also carried gation, and full compliance with resolution Sweden, the UK and the US, referred to the out by a Joint Investigation Team (JIT) cre- 2166. The draft also called for the nomina- findings of the JIT and called on Russia to ated by Australia, Belgium, Malaysia, the tion of a Special Representative of the Sec- accept its responsibility for the events, enter Netherlands and Ukraine. While the DSB retary-General on the incident, but included into discussions with the states concerned, investigation was aimed at establishing the no reference to a tribunal. and cooperate with the investigation. Nota- circumstances of the crash, the JIT-led crimi- In an effort to reach a compromise, Malay- bly, however, most spoke of Russia’s state nal investigation was designed to determine sia produced a revised draft that called on all responsibility rather than the criminal lia- accountability. Wanting to make headway on states and actors in the region to cooperate in bility of Russian individuals. Other Coun- potential criminal prosecution, the JIT mem- the conduct of the international investigation cil members, such as Kazakhstan, noted the ber countries sent a letter to the president of (without specifying which one in particular of findings without taking a clear position on the Council on 10 July 2015, requesting that the incident) as required by resolution 2166, their significance. For its part, Russia reit- the Council “establish an ad hoc internation- and called on the JIT to keep the Council reg- erated its rejection of the JIT investigation al criminal tribunal under Chapter VII of the ularly informed about the investigation. The and its conclusions as lacking any credibility. UN Charter to prosecute persons responsi- draft still called for the establishment of an It added that the “true perpetrators of the ble for crimes connected with the downing of international tribunal for prosecuting those tragedy must be determined on the basis of the MH17”. Following this request, elected responsible for the MH17 incident, however, reliable evidence and brought to justice” and member Malaysia circulated to the Council a which was unacceptable to Russia. noted its cooperation with Dutch authorities. draft resolution to this effect on 10 July. The Malaysia, with the support of the JIT Nearly five years after the MH17 disas- draft determined that the downing of flight countries, decided to put the draft resolution ter, on 19 June 2019, the JIT investigation MH17 and its implications for the safety of to a vote despite Russia’s clear intention to concluded with four indictments, filed in a civil aviation “constitute a threat to interna- veto. Indeed, Russia vetoed the draft resolu- Dutch court, against three Russians with ties tional peace and security”. tion on 29 July 2015. Eleven Council mem- to Russian military and intelligence and a The Malaysian draft resolution included, bers voted in favour of the draft and three Ukrainian connected to Russian separatists. in its annex, the statute for the proposed tri- members (China, Angola and Venezuela) The evidence retained by the JIT allegedly bunal, which defined its envisioned jurisdic- abstained. The Russian veto marked the end points to the involvement of a former senior tion, structure, and day-to-day work. The of efforts in the Council to advance account- aide to President Vladimir Putin in assisting statute seemed to have been modelled most- ability for the downing of MH17. Russian separatists in obtaining anti-aircraft ly on the statute of the Special Tribunal for In October 2015, the DSB concluded weapons. According to the Dutch authori- Lebanon (STL), another tribunal with lim- that flight MH17 had crashed due to impact ties, the trial will commence in March 2020, ited jurisdiction focusing mainly on a single with a Buk missile, which is a Russian most likely in absentia. In the 16 July 2019 event. Identifying the downing of the aircraft surface-to-air missile. briefing on Ukraine, several Council mem- as a threat to international peace and secu- There was renewed interest in account- bers called for full cooperation, including by rity under Chapter VII, the draft was meant ability for the MH17 incident when the JIT Russia, with consequent efforts to bring the

UN DOCUMENTS ON UKRAINE Security Council Meeting Records S/PV.8529 (20 May 2019) A procedural vote was held on Russia’s request to hold a meeting because of concerns regarding a recently enacted Ukrainian language law that Russia said ran counter to the spirit of the 2015 Minsk agreements and resolution 2202. Five Council members voted in favour of holding the meeting (China, the Dominican Republic, Equatorial Guinea, Russia and South Africa), six voted against (Belgium, France, Germany, Poland, the UK, and the US), and four abstained (Côte d’Ivoire, Indonesia, Kuwait and Peru) S/PV.8270 (29 May 2018) was a briefing on the situation in Ukraine chaired by Polish Foreign Minister Jacek Czaputowicz. S/PV.7205 (24 June 2014) was a briefing on Ukraine by Assistant Secretary-General for Human Rights Ivan Šimonović and Assistant Secretary-General for Political Affairs Tayé-Brook Zerihoun. S/PV.7157 (16 April 2014) was a briefing by Assistant Secretary-General for Human Rights Ivan Šimonović, who shared findings from his two visits to Ukraine in March. S/PV.7144 (19 March 2014) was a public meeting on the situation in Ukraine with a briefing by the Assistant Secretary-General for Human Rights and the Deputy Secretary-General. S/PV.7138 (15 March 2014) was a meeting on the situation in Ukraine during which the Security Council voted on a resolution. S/PV.7123 (28 February 2014) was a private meeting of the Council, fol- lowed by consultations, on the situation in Ukraine.

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 19 Part II: Case Studies (Ukraine) perpetrators to justice. Russia has continued an international criminal tribunal with juris- longtime authoritarian president, Ali Abdul- to deny any involvement in the incident. diction over an incident such as this under lah Saleh, to hand over power to his deputy, Chapter VII, obligating UN member states Abdo Rabbo Mansour Hadi, in 2011. Much OBSERVATIONS to cooperate with a tribunal. But the Coun- of the security apparatus remained loyal to The Council’s track record on Ukraine cil ultimately failed to play a meaningful role Saleh, still active behind the scenes, and Hadi showcases the difficulty facing the Council with respect to accountability for the down- struggled to manage issues such as corrup- when one of the P5 is a party to, or heav- ing of MH17. The four indictments being tion, unemployment, and food insecurity. ily involved in, a conflict. The Council has pursued in Dutch courts seem unlikely to The Houthis—a Zaidi Shi’a rebel group mainly focused on the political and humani- receive the necessary cooperation from Rus- from the north, which waged a series of tarian aspects of the crisis, with little suc- sia, and consequently the accused are not rebellions against Saleh over the years—took cess on either, while giving limited atten- expected to be present during their trial. advantage of Hadi’s weakness by assuming tion to accountability for the grave human In resolution 2166, adopted just days control of the Zaidi heartland of Saada prov- rights abuses committed during the conflict, after the M17 crash, the Council was able to ince and neighbouring areas. In early 2014, though information on human rights abuses agree on what was arguably the lowest com- sporadic fighting started among three enti- and crimes was presented to the Council in mon denominator—the need for a credible ties: the government, religious Muslim Salafi various meeting formats. In most cases, the investigation into the incident. Unlike other separatist groups, and the Houthis. The Council did not respond to specific inci- Council resolutions regarding commissions crisis took on fresh dimensions in August dents of grave violence. of inquiry into reported violations of inter- of that year when tens of thousands of pro- This was not the case with the downing of national humanitarian law and human rights testors took part in mass demonstrations in MH17. The incident exacerbated the stark law– such as in Darfur in 2004– resolution the capital, Sana’a, and several other cities. divide between several Council members 2166 did not oblige states to cooperate with Houthi leader Abdulmalek al-Houthi had and Russia. The affected countries actively the investigation under Chapter VII. Never- called for the protests against the “corrupt” pursued accountability for what appeared theless, even this resolution demands that government for failing to carry out reforms, to be an attack—intentional or in error— those responsible be brought to justice and had demanded the reinstatement of fuel on a civil aircraft rather than an aviation calls upon states to cooperate with the inter- subsidies that had been lifted on 30 July, and accident. Two investigations (the DSB and national investigation. Thus, it contains lan- had also demanded that President Hadi dis- the JIT) were established relatively quickly guage that could have been reiterated and solve the government and replace it with one to hold those responsible accountable. As followed up by Council members to sustain that was more representative. the investigations continued, they pointed political pressure for ending impunity for Between 18 and 21 September 2014, the towards the involvement of Russia or Rus- this incident. Houthis seized several government institu- sian-supported rebels, thus pitting Russia In the same vein, despite the explicit tions in Sana’a. Security forces on the whole against other Council members, as has been invitation contained in the resolution, the refrained from confronting the Houthis, most the case more generally in the Council with Secretariat never followed up on providing likely due to an alliance formed between the respect to Ukraine. options for UN involvement in the MH17 Houthis and Saleh earlier that year. The situ- When the Council contemplated con- investigation. Though the international ation was stabilised through the efforts of UN crete action to set up a tribunal, Russia investigations of the incident have now con- Special Envoy Jamal Benomar in brokering questioned the relationship of accountabil- cluded, the Secretariat should not refrain the 24 September 2014 Peace and National ity over the downing of flight MH17 to a from providing options to support account- Partnership Agreement (PNPA). threat to international peace and security ability mechanisms in the future, even if the Despite the PNPA, which was to lead to and to resolving the situation in Ukraine. likelihood of such options receiving support an inclusive government with Houthi rep- Other Council members made the connec- from Council members is low. resentatives in return for their withdrawal tion between this incident and the conflict from key positions, the situation continued itself. Ultimately, the Council was unable YEMEN to deteriorate. With civil disobedience turn- to separate the matter of accountability for ing violent, the situation worsened during this specific grave incident from the politics BACKGROUND the final months of 2014 and early 2015. hampering action in the Council on Ukraine The current conflict has its roots in the fail- On 21 February 2015, President Hadi fled more generally. ure of a political transition that was sup- from Sana’a to Aden after escaping from The Security Council has the unique abil- posed to bring stability to Yemen, after public the house arrest which the Houthis had ity within the international system to set up pressure during the ‘Arab Spring’ forced its imposed on him in January, and declared

UN DOCUMENTS ON UKRAINE Security Council Press Statements SC/11733 (13 January 2015) condemned the killing of 11 civilians as a result of the shelling of a passenger bus in Volnovakha. SC/11480 (18 July 2014) expressed condolences to the families of those killed in the downing of Malaysia Airlines flight 17 and called for a thorough and independent international investigation. SC/11442 (17 June 2014) condemned the killing of two Russian journalists that day in Ukraine. General Assembly Document A/RES/68/262 (27 March 2014) was the General Assembly resolution on the territorial integrity of Ukraine. Human Rights Council Document A/HRC/28/64/Add.1 (27 January 2015) was the report of the Human Rights Mission to Ukraine on the situation in the country, including Crimea. Other S/2017/754 (5 September 2017) was a letter from Russia to the Secretary-General and the president of the Security Council containing a draft resolution on the establishment of a UN support mission to protect the OSCE’s Special Monitoring Mission in Eastern Ukraine. S/2015/562 (29 July 2015) was a draft resolution, presented by Malaysia, to establish a tribunal for prosecution of those responsible for the downing of flight MH17. Russia vetoed the draft resolution, and Angola, China and Venezuela abstained. A/RES/68/262 (28 March 2014) was the General Assembly resolution on the territorial integrity of Ukraine.S/2014/189 (15 March 2014) was a draft resolution on Ukraine that was not adopted because of a veto by Russia.

20 whatsinblue.org Security Council Report Research Report December 2019 Part II: Case Studies (Yemen)

Aden as Yemen’s temporary capital. Houthi rebels concluded the Stockholm member in 2014-2015), and Kuwait (Coun- In late March 2015, Yemen descend- Agreement during consultations in Rim- cil member in 2018-2019). GCC members ed into full-scale war, and Hadi asked the bo, Sweden. The agreement addressed the were closely involved in the drafting of Res- Gulf Cooperation Council (GCC) states to issues of a ceasefire in Hodeidah and allow- olution 2216 of 14 April 2015, with Jordan intervene. In response, on 26 March, a Sau- ing goods through the ports of Hodeidah, leading Council negotiations on the draft. di Arabia-led coalition of nine Arab coun- Salif, and Ras Isa. Through November 2019, Resolution 2216 demanded that the Houthis tries—the others being Bahrain, Egypt, Jor- the ceasefire has been partially respected, withdraw from captured areas and relinquish dan, Kuwait, Morocco, Qatar, Sudan and but implementation of other aspects of the all seized arms. During negotiations on the the United Arab Emirates (UAE)—com- Agreement has been lacking, and the Agree- draft, language on the killing and maiming of menced Operation Decisive Storm against ment has not prevented the war from con- children and attacks against schools and hos- the Houthis and their allies. The coalition tinuing more generally, nor created momen- pitals was proposed but was not retained, due has received logistical and intelligence sup- tum towards a wider political settlement. to the members’ sensitivity over references port from the US, UK, and France, as well to civilian casualties caused by the Saudi-led as other European countries. The Houthis YEMEN IN THE COUNCIL coalition. The idea of calling for a ceasefire, are reportedly backed by Iran. supported by Russia, was not taken on either, After five years of conflict, the war in Accountability for attacks on civilians as Jordan, France, the UK, and the US as Yemen has cost over 10,000 lives (by a con- From the start, the fighting in Yemen took a well as members of the GCC—not officially servative count: some non-governmental heavy toll on the civilian population and the parties to the negotiations—argued that such organisations place the number of fatalities already fragile humanitarian situation. Sev- a call would undermine Hadi’s request for at over 90,000), including by direct attacks eral actors tried to address accountability the intervention, if the conflict is not ongoing. on civilians, most of which are attributed to for violations of human rights law and inter- The content of Resolution 2216 is highly the coalition forces. By November 2019, it national humanitarian law, including the significant as it has served as a basis for Coun- had displaced over 2 million people, with Panel of Experts assisting the Yemen Sanc- cil engagement on Yemen. The Saudi-led 22.5 million in danger of starvation, more tions Committee, the Children and Armed coalition has since justified its military inter- than half of them children. Conflict Working Group, the OHCHR, and vention with reference to resolution 2216. The war in Yemen, with its wider array the HRC. The Security Council, for its part, While the resolution did not authorise any of international actors, risks inflaming an has been unable to take effective action on specific enforcement measures, it explicitly already volatile region of the world. Air- this issue, and its products reflect only lim- reaffirmed Hadi’s legitimacy and took note strikes on 14 September 2019, claimed by the ited language on accountability for viola- of his 24 March 2015 letter informing the Houthis but which the US attributed to Iran, tions of international humanitarian law and Council of his request for military assistance. heavily damaged the Abqaiq and Khurais oil human rights law in Yemen. At the time of its adoption, Russia was facilities in Saudi Arabia, which process more GCC members, notably Saudi Arabia, the main dissenting voice on resolution 2216 than half of Saudi Arabia’s daily crude oil appear to have exercised a strong influence and abstained alone during the 14 April production, or 5 percent of the global market. on Council decision-making and the text 2015 vote. Within one month, however, other Moreover, the protracted conflict has of resolutions in both the Security Coun- members—initially supportive of Jordan and resulted in further disintegration of an cil and in the Geneva-based Human Rights the GCC states—had begun to have concerns already divided country. In August 2019, Council. They also appear to have strong- over resolution 2216, the conflict’s humani- fighting in southern Yemen between the armed the UN Secretariat over the UN’s tarian impact, and the open-ended nature of Yemeni government and the Southern Tran- now 14-year-old process of seeking to hold the Saudi-led military intervention. Some sitional Council (STC), a separatist group accountable parties who commit any one of members privately expressed regret over its supported by the UAE (which, at the same six grave violations of the rights of children adoption. But whatever the misgivings, the time, continues to support the Yemeni gov- in armed conflict. continuing influence of GCC states was also ernment through the GCC coalition), cre- In the Security Council, particularly strong evident in the presidential statement adopted ated a new front in the war. GCC influence was exercised through GCC on 15 March 2018. Focused mostly on the The only political headway towards de- members who have served on the Coun- humanitarian situation, the statement also escalation to date was made in December cil since the conflict began: Egypt (Coun- expressed “grave distress” over “indiscrimi- 2018 when the Yemeni government and the cil member 2016–2017), Jordan (Council nate attacks in densely populated areas” and

UN DOCUMENTS ON YEMEN Security Council Resolutions S/RES/2481 (15 July 2019) renewed the mandate of the UN Mission to Support the Hodeidah Agreement for six months until 15 January 2020. S/RES/2456 (26 February 2019) extended for an additional year the Yemen financial and travel ban sanctions, reaffirmed the provisions of the targeted arms embargo, and renewed the mandate of the committee’s Panel of Experts. S/RES/2452 (16 January 2019) established the UN Mission to support the Hodeidah Agreement (UNMHA) for an initial period of six months. S/RES/2451 (21 December 2018) endorsed the agreements reached by the parties during the consultations held in Sweden, and authorised the Secretary- General to establish and deploy, for an initial period of 30 days an advance team to begin monitoring and facilitate implementation of the Stockholm Agreement. S/RES/2216 (14 April 2015) demanded that the Houthis withdraw from all seized areas and relinquish all seized arms and established an arms embargo on the Houthis and forces loyal to former president Ali Abdullah Saleh. S/RES/2201 (15 February 2015) strongly deplored the Houthis’ actions to dissolve parliament on 6 February and take over government institutions and urged the accel- eration of negotiations to reach a consensus solution regarding the political impasse. S/RES/2140 (26 February 2014) expressed the Council’s strong support for the next steps of the political transition and established sanctions against those threatening the peace, security or stability of Yemen. Security Council Presidential Statements S/PRST/2019/9 (29 August 2019) was on developments in southern Yemen and efforts to resume comprehensive political negotiations.S/PRST/2018/5 (15 March 2018) called for the full and sustained opening of all of Yemen’s ports, including Hodeidah and Saleef ports, and for increased access to Sana’a airport. S/PRST/2017/14 (9 August 2017) was on the threat of famine in Yemen, Somalia, South Sudan and north-eastern Nigeria. S/PRST/2017/7 (15 June 2017) stressed the importance of keeping all of Yemen’s ports functioning, including Hodeidah.

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 21 Part II: Case Studies (Yemen) called on all parties “to comply with their these three violations, the other grave vio- wedding party near Al-Mokha. On 27 Octo- obligations under international humanitar- lations monitored by the Monitoring and ber 2015, airstrikes destroyed a Médecins ian law, including to respect the principle of Reporting Mechanism established by the Sans Frontières (MSF) hospital in Saada proportionality and at all times to distinguish Security Council are sexual violence against governorate. On 15 March 2016, an airstrike between the civilian population and com- children, abduction of children, and denial of on a marketplace in Hajjah, in north-western batants”. During the negotiations, Kuwait humanitarian access for children). Yemen, killed at least 106 people, according objected to specific references to airstrikes, The report triggered a strong reaction. to media reports. Criticism of Saudi Arabia which would have implicated the coalition, Addressing the media on 6 June, Saudi Ara- intensified as coalition airstrikes continued the only force using aircraft in the conflict bia’s UN Ambassador Abdallah Yahya Al- to be responsible for the majority of civilian and the main cause of conflict-related civilian Mouallimi claimed that the report’s informa- casualties. On 22 March 2016, eight non-gov- deaths in Yemen. Kuwait also pushed back tion was inaccurate and incomplete, adding ernmental organisations, including Amnes- on proposals to incorporate the stronger lan- that its timing could only be counterproduc- ty International and Human Rights Watch, guage on accountability found in HRC reso- tive for negotiations between the parties. Lat- issued a joint statement calling on all govern- lutions on Yemen (see, for example, the HRC er that day, Secretary-General Ban Ki-moon ments to stop supplying arms to the conflict resolution of 29 September 2017). announced that he was removing the Saudi parties. At a press conference, Human Rights GCC members were also able to influence Arabia-led coalition from the annex and that Watch stressed that the P3 Council members, the decision-making process in Geneva. On there would be a joint review with coalition the US, the UK and France, should stop 24 September 2015, the Netherlands submit- members of the report’s findings. At a press sending arms to Saudi Arabia until it ends ted a draft resolution on Yemen to the HRC stakeout on 9 June, the Secretary-General “unlawful” airstrikes and credibly investigates requesting the High Commissioner to send acknowledged that he took this decision in alleged violations. The joint statement also a mission to report on abuses and conflict- the face of Saudi Arabia’s threat to withdraw rejected the credibility of the Yemeni national related international crimes in Yemen. The funding from UN programmes. commission of inquiry set up on 7 September US had reportedly signalled its support for Starting with the 24 August 2017 annual 2015, which, it said, had taken no concrete the Dutch draft resolution and its call for an report, Secretary-General António Guterres action to investigate such incidents. international inquiry. Subsequently, the US, decided that each Annex will now be divid- Briefers conveyed these criticisms direct- the UK, and France chose to back a Saudi ed into an “A” section, listing parties that ly to the Council as well. Briefing on Yemen draft resolution instead, adopted on 2 Octo- have not put in place measures during the for the first time on 22 December 2015, ber 2015 by the HRC, which sidestepped an reporting period to improve the protection the High Commissioner for Human Rights international independent inquiry. Adopted of children, and a “B” section, listing parties noted that while both sides had engaged in without a vote, the resolution, while express- that have put in place some such measures. attacks in areas with a high concentration of ing concern over serious abuses and viola- (Annex I lists parties to armed conflict situa- civilians and against civilian infrastructure, tions of international human rights law and tions that are on the Council’s agenda, while a disproportionate share of these appeared international humanitarian law, focused Annex II covers armed conflict situations to be from coalition airstrikes. He recalled mainly on technical assistance and capacity- which are not on the Council’s agenda but the recommendation of his office’s 7 Sep- building for Yemeni domestic institutions in are situations of concern regarding children). tember 2015 report on Yemen for an interna- the field of human rights. The Saudi-led coalition was placed in the “B” tional investigation into credible allegations On 2 June 2016, the Secretary-General’s section of Annex 1. This approach, creating of human rights violations by all parties to annual report on children and armed conflict a new subsection for parties that have taken the conflict as well as accountability for per- was made public. It identified airstrikes by the some but not adequate measures to address petrators of all crimes. Saudi Arabia-led coalition as responsible for grave violations, has drawn criticism for dis- After High Commissioner for Human 60 percent of child casualties in Yemen dur- tracting from the fact that the parties listed in Rights Zeid Ra‘ad al-Hussein’s briefing, Chile, ing 2015 and for nearly 50 percent of attacks the “B” section continue to perpetrate grave speaking in the Council chamber, called on on hospitals and schools. As a consequence, crimes against children. the international community to promote jus- the Saudi Arabia-led coalition was listed in Throughout the conflict, coalition air- tice and accountability, and said it support- the report’s annex. The Houthis, already on strikes have caused significant civilian casual- ed the High Commissioner’s recommenda- the list for recruitment of children, were also ties and hit civilian objects, in many separate tion for “the establishment of an impartial cited for killing and maiming of children and incidents. On 28 September 2015, coalition and independent mechanism to investigate attacks on schools and hospitals. (On top of airstrikes killed as many as 135 people at a all allegations of violations and abuses of

UN DOCUMENTS ON YEMEN Security Council Presidential Statements S/PRST/2015/8 (22 March 2015) condemned the Houthi’s unilateral actions and reaffirmed the Council’s readiness to take further measures. Secretary-General’s Reports S/2019/509 (20 June 2019) was the annual report on children and armed conflict.S/2019/453 (3 June 2019) was the Secretary-General’s report on children and armed conflict in Yemen.S/2018/465 (16 May 2018) was the Secretary-General’s annual report on children and armed conflict.S/2017/821 (24 August 2017) was the report of the Secretary-General on children and armed conflict.S/2016/360/Add.1 (24 June 2016) was an Addendum to the annual report of the Secretary-General on children and armed conflict that removed the Saudi Arabia-led coalition from the Annex 1 section on parties in Yemen pending review. S/2016/360 (20 April 2016) was the report of the Secretary-General on children and armed conflict. On 6 June, the Secretary-General removed the Saudi Arabia-led coalition from the listing in Annex 1 of the report, where it had been included for the first time. The removal is considered “pending” until the conclusion of a joint review of the report’s findings with coalition members. Security Council Letters S/2019/391 (14 May 2019) was a letter from Saudi Arabia on the Houthi drone attacks against Saudi oil pumping stations. S/2015/217 (26 March 2015) was a letter to the Secretary-General and the President of the Security Council from GCC members on their decision to respond to Hadi’s request to protect Yemen from Houthi aggression. Selected Security Council Meeting Records S/PV.8619 (16 September 2019) was a briefing on Yemen with Special Envoy Martin Griffiths and Under-Secretary-General for Humanitarian Affairs Mark Lowcock.

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international human rights law and viola- Syria. It criticised the UK, asking, “How responsible for most civilian casualties in tions of international humanitarian law”. can a country with a clear material inter- Yemen, the Houthis have reportedly also tar- Nevertheless, there was no serious discus- est in extending the military conflict be a geted civilians in what may amount to inter- sion in the Council of this, nor any action; penholder for the Yemen file in the Secu- national crimes. Briefing the Council on such infrequent statements did not change rity Council?” and, pointing to the recent 18 August 2017, OCHA head Under-Sec- the underlying dynamic in the Council. attempt to adopt a press statement it called retary-General Stephen O’Brien said that Starting in its report in October 2015 “weak”, added: “It was not stated who made indiscriminate shelling of populated areas and throughout the conflict, the Yemen the strike, even though the coalition has continued in Taiz, mostly by forces affili- Panel of Experts assisting the 2140 Yemen already accepted the responsibility. There ated with the Houthis or former President Sanctions Committee (henceforth, the Pan- was not a call for an investigation to punish Saleh. Over the previous two years, O’Brien el of Experts) has reported on violations of those responsible”. Russia called the draft said, those incidents had reportedly killed international humanitarian law and inter- statement “an insult for the Yemenis”. or injured dozens of civilians, including national human rights law committed by In fact, the failed press statement had children, and damaged civilian infrastruc- Houthi-Saleh forces and the coalition. In its itself been a compromise. Initially, at the ture. He added that he blamed the inten- 22 January 2016 report, it recommended Council meeting on 31 October, the UK had sifying violence of the conflict on, among that the Council establish a commission of outlined four elements of a proposed reso- other factors, the absence of accountability inquiry to investigate these alleged crimes. lution: an immediate cessation of hostilities. mechanisms. The Council has not reacted to The Panel of Experts has also submitted resumption of negotiations, accountability Houthi violations, either. case studies on specific attacks to the 2140 for alleged breaches of international human- The Group of International and Regional Sanctions Committee. One such case study, itarian law, and unhindered humanitarian Eminent Experts on Yemen (GEE) estab- submitted on 17 October 2016, concerned access. Reportedly due to Saudi objections lished by the HRC on 29 September 2017 coalition airstrikes on 8 October that tar- to the draft resolution, the UK did not take and composed of Kamel Jendoubi (Tuni- geted a high-ranking Houthi official taking the initiative further, never circulating the sia) as chairperson, Charles Garraway (UK), part in funerary arrangements for his father text to the wider membership. and Melissa Parke (Australia), published its in Sana’a. Hundreds of people, including Discussing but not taking action on coali- findings on 28 August 2018. Examining the families and political and tribal leaders, were tion attacks became a familiar feature in the human rights situation in Yemen, the experts present at the reception hall where the service wake of fresh incidents. On 9 August 2018, affirmed that individuals from both sides, was being held. More than 140 people were a coalition airstrike hit a school bus in Saa- including Saudi Arabia and the UAE, might killed and at least 540 injured. The Panel of da, killing 44 children. The next day, at the have committed war crimes. The report stat- Experts concluded in its preliminary analysis request of Peru, Council members discussed ed that coalition airstrikes might have been that the attack was caused by at least two aer- the attack in consultations. Through press conducted in violation of the principles of ial bombs and that evidence suggested that elements, members called for a credible and distinction, proportionality, and precaution. the Saudi Arabia-led coalition had violated its transparent investigation. Initially, the coali- The report recommended that the HRC obligations under international humanitarian tion defended the strike, but on 1 September, urge the Security Council to emphasise the law. The attack led to an international out- the Joint Incidents Assessment Team (JIAT), human rights dimensions of the conflict in cry, and on 15 October the Saudi Arabia-led an investigative body set up by the coalition Yemen and the need to ensure that there coalition announced the results of an internal in August 2016, said the strike had been would be no impunity for the most serious GCC investigation that found the attack to conducted based on intelligence that Houthi crimes, as did the GEE’s report of the fol- have been based on inaccurate information leaders were on the bus but that delays had lowing year. One year later, the GEE’s 3 Sep- from the Yemeni government. led to a strike with children on board. How- tember 2019 report detailed similar alleged The Council took no action and could not ever, the JIAT was set up to assess whether war crimes committed by the parties to the agree on a draft press statement circulated proper military procedures were followed in conflict through airstrikes, but also through by the UK condemning the funeral strike. various incidents, not to investigate deadly indiscriminate shelling, snipers, landmines, In a briefing on 31 October 2016, Russia attacks as such. The JIAT has been criticised arbitrary detention, torture, sexual violence, noted, as it has done several times through- by observers including the Group of Eminent and impeding access to humanitarian aid. In out the Yemen conflict, the “cynical double Experts established by the HRC as partial both years, the group submitted a confiden- standards” it saw in the different response and falling short of international standards. tial list to the High Commissioner for Human from the P3 to civilian deaths in Yemen and Though the Saudi-led coalition has been Rights of individuals possibly responsible for

UN DOCUMENTS ON YEMEN Security Council Meeting Records S/PV.8598 (20 August 2019) was a briefing on Yemen by Special Envoy Martin Griffiths and the Assistant Secretary- General for Humanitarian Affairs Ursula Mueller. S/PV.8578 (18 July 2019) was a briefing on Yemen by Special Envoy Martin Griffiths, Under-Secretary-General for Humanitarian Affairs Mark Lowcock, and Executive Director of the World Food Programme David Beasley. S/PV.8551 (17 June 2019) was a briefing on Yemen by Special Envoy Martin Griffiths, Under-Secretary- General for Humanitarian Affairs Mark Lowcock, and Executive Director of the World Food Programme David Beasley.S/PV.8525 (15 May 2019) was a briefing on Yemen by Special Envoy Martin Griffiths, Under-Secretary-General for Humanitarian Affairs Mark Lowcock, UNICEF Executive Director Henrietta Fore, and Ambassador Gustavo Meza-Cuadra (Peru), as the chair of the 2140 Sanctions Committee. S/PV.8361 (21 September 2018) was a briefing on Yemen with Under-Secretary-General for Humanitarian Affairs Mark Lowcock. S/PV.8348 (11 September 2018) was a briefing with UN Special Envoy Martin Griffiths on the Geneva consultations.S/PV.8027 (18 August 2017) was a briefing on Yemen by Under-Secretary-General for Humanitarian Affairs Stephen O’Brien and Special Envoy for Yemen Ismail Ould Cheikh Ahmed. S/PV.7954 (30 May 2017) was a briefing on Yemen by Special Envoy Ismael Ould Cheikh Ahmed, OCHA head Stephen O’Brien and a Yemeni civil society representative, Radhya al-Mutawakel. S/PV.7797 (31 October 2016) was a briefing by Special Envoy for Yemen Ismail Ould Cheikh Ahmed, OCHA head Stephen O’Brien and World Food Programme regional director Muhannad Hadi.

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 23 Part II: Case Studies (Yemen) international crimes. The 2019 report also main airport, among other things making recommended that the Security Council call suggested that the P3 and Iran, among other it impossible for civilians to leave Yemen for on the Saudi-led coalition not to misuse the states, could be responsible for violations of medical treatment. Council-mandated arms embargo as a justifi- international humanitarian law for transfer- On 9 October 2015, the 2140 Yemen cation for obstructing the delivery of essential ring arms and providing other logistical or Sanctions Committee met to consider the goods and humanitarian aid. intelligence support to the parties. Panel of Experts’ findings, circulated in a let- The Group of Eminent Experts on Yemen The current mandate of the GEE renewed ter on financial sanctions and international also addressed accountability for such actions by the Human Rights Council on 29 Septem- humanitarian law issues. The letter raised in their report of 28 August 2018, which stated ber 2019, expanded their mandate to report concerns about the intentional obstruction that there were reasonable grounds to believe on violations of international humanitarian of humanitarian access and provision of that coalition restrictions on commercial ship- law on top of human rights violations. Mean- assistance, including commercial shipping. ping had violated the proportionality rule of while, an initiative by Peru to have Jendoubi Among its recommendations, the Panel pro- international humanitarian law, having caused brief the Council in October 2019 was met posed that the committee chair approach extreme suffering for millions of civilians and with objections from a number of Council member states that were conducting military not being justified by any possible military members, also echoing the views of Saudi operations in Yemen and other relevant par- advantage. According to the report, the ban Arabia and the UAE. With a procedural vote ties to stress their responsibility to respect on commercial flights to Sana’a constituted likely to fail to gain the required majority for international humanitarian law and to ask a violation of international humanitarian law a briefing, Jendoubi met with Council mem- that they cooperate with the Panel in inves- protections for the sick and wounded. Viola- bers in an informal setting instead. tigating potential cases of obstruction of tions by the Houthis and their allies resulting humanitarian assistance. Like other recom- from indiscriminate attacks and access restric- Besiegement as a method of war mendations requesting the chair to approach tions in Taiz were also cited, though the experts, Besiegement, blockades, starvation, and GCC members and their allies, this proposal who could not visit the city, said further inves- intentional blocking of humanitarian assis- was not endorsed by the committee. tigations into these issues were required. tance have been practised by both parties to Despite disagreements, at certain junctures As international attention to the humani- the conflict in Yemen. At present, the only Security Council members were able to find tarian crisis in Yemen grew, on 15 March achievement aimed at addressing this issue, common ground on the importance of human- 2018 the Council adopted a presidential the Stockholm Agreement between Yemen itarian access in Yemen. A presidential state- statement calling for the full and sustained and the Houthis principally concerning ment on Yemen of 15 June 2017 focused on the opening of all of Yemen’s ports, including the port of Hodeidah and endorsed by the country’s humanitarian crisis and confidence- the Houthi-controlled Hodeidah and Saleef Council, continues to hold, keeping open building measures related to Hodeidah port. ports, and for increased access to Sana’a this vital supply pipeline. The statement called on the parties to allow airport. The Council reaffirmed that access The Saudi-led coalition imposed a de safe, rapid, and unhindered access for humani- restrictions can constitute violations of inter- facto naval and aerial blockade on Yemen tarian supplies and personnel and to facilitate national humanitarian law and stressed the in March 2015, by imposing severe restric- essential imports of food, fuel and medical need to prevent the adverse effects of the tions on a country which imported over 90 supplies and their distribution throughout the arms embargo on commercial and humani- percent of its food as well as other essential country. In this regard, the Council stressed tarian imports. As mentioned above, language items such as fuel and medicine. Through- the importance of keeping all of Yemen’s ports on accountability for crimes committed was out the conflict, the coalition has main- functioning, including Hodeidah, as a critical taken out in order to reach consensus. tained restrictions on commercial shipping lifeline for humanitarian support and other The situation in Hodeidah took a turn for and flights, requiring that Yemen-bound essential supplies. Notwithstanding the June the worse when, on 13 June 2018, the GCC ships be inspected by coalition forces and presidential statement, in response to a missile coalition commenced a long-anticipated obtain authorisation to proceed. Coali- launched towards Riyadh by the Houthis on 4 offensive against the port city. OCHA had tion airstrikes on 18 August 2015 severely November 2017, the GCC coalition imposed a warned on 8 June that such an attack on damaged the port of Hodeidah, the main complete blockade on all imports and exports Hodeidah was likely to prove “catastroph- gateway for delivering humanitarian aid to over Yemen for several weeks. ic”, predicting that as many as 250,000 lives Houthi-controlled parts of Yemen, includ- Besiegement and “using the threat of star- could be lost as a result of both the fighting ing destroying the port’s cranes (new cranes vation as an instrument of war” were raised and its broader humanitarian impact, as most were delivered in January 2018). In August in the Yemen Panel of Experts’ annual final of the country’s food and other critical sup- 2016, the coalition stopped all commer- report to the 2140 Sanctions Committee plies were imported through Hodeidah port. cial flights in and out of Sana’a, Yemen’s submitted on 10 January 2018. The report Under-Secretary-General for

UN DOCUMENTS ON YEMEN Selected Security Council Meeting Records S/PV.7596 (22 December 2015) comprised briefings by Special Envoy Ould Cheik Ahmed, High Commissioner for Human Rights Zeid Ra’ad Al Hussein and Assistant Secretary-General for Humanitarian Affairs Kyung-wha Kang. Security Council Press Statements SC/13834 (10 June 2019) underlined Council members’ full support for the Secretary-General’s Special Envoy for Yemen, Martin Griffiths.SC/13785 (17 April 2019) expressed grave concern that the agreements reached in Stockholm have not yet been implemented. SC/13713 (22 February 2019) called for the immediate implementation of the Phase 1 redeployment of forces from the Hodeidah agreement. SC/13690 (4 February 2019) stressed the critical importance of the parties’ fulfilling their commitments made in Sweden.SC/13270 (28 March 2018) condemned the Houthi missile attacks targeting several cities in Saudi Arabia on 25 March and expressed grave concern at the humanitarian situation in Yemen. SC/13143 (22 December 2017) condemned the 19 December ballistic missile attack by the Houthis on Riyadh.

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Humanitarian Affairs Mark Lowcock warned an executive mechanism to implement the objects essential to the survival of the pop- the Council on 21 September 2018 that prisoner exchange agreement that had been ulation, and impediments to the delivery Yemen might be “approaching a tipping point, reached prior to the start of consultations; of aid deprive the population of necessary beyond which it will be impossible to prevent and a statement of understanding on Taiz. items for survival. massive loss of life as a result of widespread Together, these comprised the Stockholm The use of sanctions famine across the country” and described Agreement. Among other things, the agree- Though slow to react to the breakout of all-out already existing “pockets of famine-like con- ment over the critical port city of Hodeidah war in Yemen, Council members recognised ditions”. In response, Russia and a group of established an immediate ceasefire in Hodei- early on that Yemen’s political transition was five elected members—Bolivia, the Nether- dah governorate and a mutual redeployment stalling, with spoilers seeking to undermine lands, Peru, Poland and Sweden—called for of forces from the three ports and Hodeidah the process. The Council responded through ending offensive operations around Hodei- city to agreed locations outside the ports and sanctions, establishing the 2140 sanctions dah. The P3, on the other hand, focused on city, to be implemented in phases over three regime on 26 February 2014 to target princi- the need to protect infrastructure and access weeks. pally Saleh and the southern separatist groups for humanitarian and commercial goods. The agreement was endorsed by the Coun- aligned with him. The measures included trav- Concurrent with the offensive, the value cil on 21 December in resolution 2451, and el bans and asset freezes applicable to individu- of the Yemeni rial plummeted, making food on 16 January 2019, the Council adopted res- als engaged in “planning, directing or commit- unaffordable for millions of Yemenis. Around olution 2452, establishing the UN Mission to ting acts that violate applicable international the same time, the killing of US-based Sau- support the Hodeidah Agreement (UNMHA) human rights law or international humanitar- di journalist Jamal Khashoggi on 2 October for an initial period of six months. Though ian law or acts that constitute human rights 2018 inside Saudi Arabia’s consulate in Istan- European Council members and Peru wanted abuses, in Yemen”. (The first designations, bul triggered fresh international scrutiny of accountability addressed in the text, a para- however, were not made until 7 November Saudi Crown Prince Mohammed bin Salman graph in a previous draft that would have 2014, when two Houthi military command- and greater attention to Saudi Arabia’s con- underlined the need for investigations into ers and Saleh were listed by the 2140 Yemen duct of the war in Yemen. alleged violations of international humanitar- Sanctions Committee, as the Council realised, At a 23 October 2018 briefing of the ian law and for those found responsible to be perhaps too late, that the transition process Council, Lowcock said that an imminent held accountable was removed, reportedly at was not merely stalled but had derailed). famine threatened the lives of as many as 14 the insistence of the US. Resolution 2216 of 14 April 2015 further million people. Five steps were necessary to At the time of writing in November 2019, broadened the sanctions regime, creating a avert a major famine in Yemen, Lowcock said: the ceasefire in Hodeidah continues, but has targeted arms embargo and expanding the a ceasefire around critical infrastructure, lift- been violated frequently by the two sides. The designation criteria to include violations ing of access restrictions and keeping open Council’s call for the agreement’s immedi- of the embargo and obstructing delivery of main transport routes, measures to stabi- ate implementation in press statements on 4 humanitarian assistance and access. The lise the economy, increased funding for the February, 22 February, 17 April and 10 June Council designated al-Houthi and former humanitarian operation, and resumption of 2019, and in a presidential statement on 29 president Saleh’s son in an annex to the res- a UN-led political process. August 2019, have largely been ignored. Due olution, subjecting them to an assets freeze The pressure on the coalition was mount- to disagreement on the composition of local and a travel ban. ing. On 30 October 2018, then-US Secre- forces to take over security of the city and The Yemen Panel of Experts repeat- tary of Defense James Mattis and Secretary ports, there has been only limited progress edly reported on violations of international of State Mike Pompeo for the first time towards the mutual redeployment of forc- humanitarian law and international human called for the cessation of hostilities, joining es as set out in the agreement. In addition, rights law committed by Houthi-Saleh forces a similar call by the Secretary-General. By there has been no progress on alleviating the and the coalition, including the obstruction 13 November, a tentative pause in Hodeidah humanitarian situation in the city of Taiz. of humanitarian assistance, noting that these operations appeared to have gone into effect. At present, Yemen remains the world’s offences are among the designation criteria. At that point, all Council members were call- worst humanitarian crisis, with over 24 Specifically, it recommended that the Coun- ing for an immediate ceasefire. million people needing humanitarian assis- cil refer to member states conducting military In meetings held between 6 to 13 Decem- tance. Despite the dire need for humanitar- operations in Yemen and all relevant parties ber in Sweden, mediated by the Secretary- ian access, the 3 September 2019 report to the conflict and stress their responsibility General’s Special Envoy Martin Griffiths, of the Group of Eminent Experts con- to respect and uphold international humani- the parties reached several agreements: an firms that besiegement as a method of tarian law, that the Council encourage Yemen agreement on the city of Hodeidah and warfare continues in Yemen. According to to take steps towards holding perpetrators of the ports of Hodeidah, Salif, and Ras Isa; the report, the blockade, attacks affecting crimes accountable, and that the Council

UN DOCUMENTS ON YEMEN Security Council Press Statements SC/12541 (4 October 2016) strongly condemned an attack by Houthi forces on a UAE vessel operating near Bab al-Mandeb strait on 1 October. Sanctions Committee Documents S/2017/81 (11 January 2017) was the Panel of Experts’ final report. S/2016/73 (22 February 2016) was the final report of the Yemen Panel of Experts. S/2015/125 (20 February 2015) was the final report of the 2140 Yemen Panel of Experts. Human Rights Council Documents A/HRC/42/L.16 (24 September 2019) renewed the mandate of the Group of Eminent International and Regional Experts on Yemen for one year. A/HRC/42.CRP.1* (3 September 2019) was a report of the Group of Eminent International and Regional Experts on Yemen setting out its detailed findings that were summarized in a second shorter report dated 9 August 2019.A/HRC/42/17 (9 August 2019) was a report of the Group of Eminent International and Regional Experts as submitted to the United Nations High Commissioner for Human Rights highlighting incidents and patterns of conduct since September 2014. .

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 25 Part II: Case Studies (Yemen) consider establishing an international com- and trade relationships with Saudi Arabia, as and reported them to the committee, and mission of inquiry to investigate reports of well as with other GCC countries, have made has also recommended that the Council take violations of international humanitarian law the Council sensitive to Saudi influence and a more forceful approach to accountability, and human rights law in Yemen by all parties often restrained members’ ability to discuss including by establishing its own commission and to identify the perpetrators of such vio- the situation more critically, despite most of inquiry into the actions of the parties. The lations. The Panel has also expressed its con- members’ concerns about the prudence of Council, or its Sanctions Committee, could cern that member states of the coalition were the military intervention and the rapidly dete- threaten or impose sanctions on perpetrators hiding behind “the entity” of the “coalition” riorating humanitarian situation. of international crimes. But aside from early to divert attention and shield themselves from Russia has played a role in making Coun- listings of opponents of the Yemeni govern- state responsibility for violations by their forc- cil outcomes more even-handed between ment and Saudi-led coalition, none of which es during airstrikes. the parties, especially in the first years of were listed for violations of international Nevertheless, since the adoption of reso- the crisis, by highlighting Houthi perspec- humanitarian law and human rights law, the lution 2216, Council dynamics around sanc- tives. At the same time, it did not push for sanctions regime remains underutilised. tions have focused less on using sanctions any action on accountability. In the meantime, other bodies, such to advance accountability and more on dis- Uruguay, and also Chile, Poland, the as the HRC, have taken a more proactive agreement among Council members about Netherlands, and Sweden, among oth- approach towards accountability for crimes addressing the role of Iran in assisting the ers, have over the years been willing to use committed during the conflict in Yemen. Houthis and violating the sanctions regime. more forceful language on accountability for Though also slow to react because of politi- There have been no listings since resolution crimes committed by the coalition during the cal considerations, the HRC has taken steps 2216, and there are currently no listings of conflict. But these calls have been inconsis- geared towards accountability by establish- individuals fighting for the coalition. tent and have never gained much traction. ing an independent investigation into acts Even those Council members that have been committed during the conflict. The grave OBSERVATIONS assertive on the importance of accountability findings cited above have not prompted a This account is not an exhaustive catalogue of mechanisms in other situations have, on the shift in attitude by the Security Council, the attacks on civilians, the human rights vio- whole, not displayed such commitment with however. The Council should consider mak- lations, the destruction of critical infrastruc- respect to the situation in Yemen and have ing use of the findings of other bodies or ture and besiegement of civilians that may not initiated concrete action. One way this establishing mechanisms of its own to inves- constitute international crimes by all parties has manifested itself is in Council outcomes tigate alleged crimes by both parties to the to the ongoing conflict in Yemen. that avoid references to specific attacks by conflict in Yemen. Different members’ political relationships the GCC coalition, instead using more gen- The enhanced attention to the war at and interests, particularly with Saudi Arabia, eral language on accountability, violations of the end of 2018 and the outcry over the have made the Yemen conflict difficult for the international humanitarian law and human disastrous humanitarian situation created Council to address generally, including with rights law. The reluctance to hold the GCC enough international pressure to bring the respect to accountability aspects. Thus, the coalition members accountable has also parties together and produce the Stockholm general framework for the Council with respect meant, paradoxically, that the Council has Agreement, under the mediation of Griffiths. to the conflict remains resolution 2216, draft- been unable to hold the Houthis and their Though limited in scope and yet to be ed by the GCC members led by Saudi Arabia, allies accountable for alleged crimes. implemented, it has produced a ceasefire in which places the onus on the Houthis to lay What the Council has been able to achieve Hodeidah and allowed for some easing of the down seized arms and withdraw from captured is the establishment of a sanctions regime humanitarian crisis. Thus, international pres- areas. Elected members Jordan and thereafter with listing criteria that include perpetrat- sure can compel the parties, as well as their Egypt and Kuwait have reflected the views of ing violations of international humanitarian allies on the Council, to seriously advance the GCC in their positions in the Council. The law and human rights law. This was done efforts to address aspects of the situation in UK and the US have provided the coalition before the beginning of the crisis, however, Yemen. At the same time, the lack of imple- with assistance, both operational and logistical, mainly with former President Saleh in mind mentation of the Stockholm Agreement and have sold it arms, as has France. Other as a spoiler of the political transition. Resolu- demonstrates that momentary and inconsis- Council members that are customarily at the tion 2216 added obstruction of the delivery tent political pressure to address a humani- forefront of pushing for accountability mea- or distribution of humanitarian assistance to tarian disaster created by the parties is not sures have been cautious about taking positions the designation criteria. The Panel of Experts enough to bring about a political solution to that are contrary to Saudi preferences. assisting the Yemen Sanctions Committee has the situation in Hodeidah, accountability for Several members’ close political, financial repeatedly found evidence of such violations the use of besiegement as a method of war,

UN DOCUMENTS ON YEMEN Human Rights Council Documents A/HRC/39/43 (17 August 2018) was the report of the High Commissioner for Human Rights containing the findings of the Group of Eminent International and Regional Experts on Yemen. A/HRC/RES/36/31 (29 September 2017) called on the High Commissioner for Human Rights to establish a group of international and regional experts to monitor and report on the situation of and carry out a comprehensive examination of all alleged violations and abuses since September 2014. A/HRC/33/38 (4 August 2016) was a report of the High Commissioner for Human Rights on Yemen, reiterating his previous recommendation for an international, independent body to investigate alleged violations in Yemen. A/HRC/RES/30/18 (2 October 2015) was a resolution, requesting the High Commissioner of Human Rights to provide Yemen technical assistance in the field of human rights and to assist a national commission of inquiry.A/HRC/30/31 (7 September 2015) was a UN High Commissioner for Human Rights report on Yemen, which recommended establishing an international mechanism to investigate alleged human rights violations.

26 whatsinblue.org Security Council Report Research Report December 2019 or a political solution to the wider conflict.

Part III: Observations and Conclusions

OBSERVATIONS AND rhetoric on the importance of accountability. and seek accountability, establishing mecha- CONCLUSIONS In the cases of Syria, Myanmar and Yemen, nisms including commissions of inquiry on Security Council Report’s previous research Council members have even found rheto- Syria and Myanmar and the Group of Emi- reports on individual criminal accountability ric hard to agree on: China has questioned nent International and Regional Experts on showed that the Security Council, while not the relevance of justice and accountability Yemen, while pressing the Security Council to always consistent in its actions, views uphold- to the events in Myanmar, for example, and take more action, such as an ICC referral or ing accountability as integral to the mainte- the P3 and other Council members have by creating ad hoc tribunals. The Council has nance of international peace and security. avoided language that implies possible vio- not been receptive to these calls and has on This report shows that Council members lations of the laws of war by Saudi Arabia, several occasions avoided receiving briefings have been kept informed of violations of the UAE and their allies in Yemen. from these commissions in public meetings. international humanitarian law and human In a Council that is perhaps at its most The General Assembly has also taken rights law in situations on their agenda. This divided since the end of the Cold War, the action to fill the void. This was evident when information is provided through a vari- case studies show that suspected perpetrators it established the International Independent ety of formats – formal meetings, consul- of grave violations of international humani- Investigative Mechanism to collect and pre- tations or informal settings such as Arria- tarian law and human rights law, whether serve evidence of crimes committed in Syr- formula meetings, by the Secretariat, the they are state or non-state actors, can expect ia for future prosecutions. This was a direct High Commissioner for Human Rights, minimal consequences for their actions. result of the lack of progress in the Council the High Commissioner for Refugees, vari- The scope of various national and regional on accountability mechanisms for Syria after ous special representatives, regional bod- interests in these four case studies also dem- the Assembly called on the Council to do so ies, and civil society. At times the Council onstrates a lack of consistency by Council in resolutions, as did dozens of member states. was unable to meet briefers in formal meet- members, including those that strongly pro- Other bodies also took steps to fill the ings, however, because some of its members mote accountability as a matter of principle, accountability gap. The OPCW played objected, and some briefings, for example in upholding accountability when political a prominent investigative role on Syr- by the HRC’s Commission of Inquiry on alliances are at stake. With the exception of ian chemical weapons. On the downing of Syria, have always taken place in informal the consensus around ISIL, other actors in MH17 in Ukraine, the Joint Investigation meetings. In addition, Council members at these conflicts who commit crimes are able Team, established by Australia, Belgium, times could not agree on particular brief- to escape responsibility for their illegal acts, Malaysia and Ukraine, took the lead in iden- ers, especially when these appeared likely to and their crimes are rarely given the atten- tifying the perpetrators of the attack despite be critical of a particular party to a conflict, tion they deserve. An umbrella of impunity the Council’s veto of a resolution to bring such as when, on 19 March 2018, Russia has been created over these conflicts. those perpetrators to justice. On Myanmar, initiated a procedural vote that prevented The Council can claim credit for some while calls for the Council to refer the situ- the High Commissioner for Human Rights advances, notably on the chemical weap- ation to the ICC have not gained traction, from briefing the Council on Syria, or on 30 ons track in Syria, where it adopted resolu- the ICC itself has taken what some might October that year when the European mem- tions aimed at ending Syrian capability to consider a proactive approach to its jurisdic- bers of the Council urged a procedural vote use chemical weapons and at identifying the tional scope to allow the ICC Prosecutor to that prevented a representative of Ukrainian perpetrators of chemical weapons attacks begin investigations into the situation. separatists (suggested by Russia) from brief- through the Joint Inspection Mechanism Non-Council actors are likely to con- ing the Council. Similarly, China opposed (JIM). This was a rare moment of agreement tinue to play an important role in the push a briefing by the chair of the HRC’s fact- on accountability between Russia and the for accountability for perpetrators of mass finding mission on Myanmar in October US. Though partially successful in removing crimes. It remains the case, however, that 2018, which could take place only after a Syrian stockpiles of chemical weapons, even- only Council decisions create binding obliga- procedural vote. These difficulties notwith- tually the Council’s actions fell well short tions on the relevant states and the wider UN standing, in all cases examined in this report, of stopping chemical warfare in Syria. Ulti- membership to cooperate with accountability the Council was amply informed about mass mately, Russia acted to terminate the JIM, mechanisms, and only the Council has the atrocities, human rights and humanitarian sparing Syria and its officials from being power to enforce these decisions. This is why law violations, and lack of accountability for held accountable for such crimes. the Council’s passivity in promoting account- such actions. As the Council has been unable to bring ability is so significant. Perhaps more so than in the preceding justice to victims, or significantly affect The case studies have identified various period, Council practice surveyed in this the course of these conflicts, other actors measures the Council could take short of report shows that in some of the most devas- have shown a more assertive and proactive establishing its own accountability mecha- tating conflicts of recent times, the Council response. First and foremost, the HRC and nisms or an ICC referral. These include has rarely been able to move beyond general the OHCHR continued to collect evidence urging the parties to cooperate with the

Security Council Report Research Report Decembert 2019 securitycouncilreport.org 27 Part III: Observations and Conclusions Security Council Report Staff Karin Landgren Executive Director mechanisms of the HRC, imposing sanc- assertive with respect to accountability: Joanna Weschler tions on perpetrators of mass crimes, or, in establishing the innovative ad hoc criminal Deputy Executive Director the case of Myanmar, urging it to cooper- tribunals in the 1990s, for example, or bring- Shamala Kandiah Thompson ate with the ICC probe. The Council could ing into being the 2006 agreement between Deputy Executive Director adopt forceful language on accountability the UN and Lebanon that established the Paul Romita Senior Policy Analyst directed at particular actors in the conflict Special Tribunal for Lebanon, bypassing the in order to curb their actions. Where the internal political turmoil that kept Lebanon Teale Harold Policy Analyst Council has, as in Yemen, created a panel from ratifying the agreement. The Council Lindiwe Knutson of experts assisting its sanctions commit- is challenged in following through in specific Policy Analyst tee, it could give closer consideration to the situations what its members have acknowl- Vladimir Sesar panel’s recommendations on accountability. edged as a general principle. Policy Analyst The Council’s lack of ability to muster Ending impunity is not only a matter of Eran Sthoeger an immediate collective response to certain principle. For the Council, it is also a prac- Policy Analyst events, such as egregious Syrian chemical tical tool to maintain international peace Vanessa Tiede attacks on its population, arguably contrib- and security. Lack of action on accountabil- Policy Analyst uted to the P3 taking unilateral action in the ity in conflicts where mass crimes are com- Benjamin Villanti form of airstrikes, albeit on questionable legal mitted risks hampering the Council’s ability Policy Analyst grounds. Collective security measures and to address and resolve these conflicts more Robbin VanNewkirk enforcement action authorised by the Coun- broadly, in a way that ensures long-term Website Manager cil have a sounder legal basis and generally stability and avoids the resumption of con- Audrey Waysse enjoy more legitimacy in the eyes of the wider flict. Without fresh and decisive approaches Operations Manager membership than do unilateral measures. to accountability in current conflicts on its Maritza Lopez Administrative Assistant The inability to end impunity has unfor- agenda, the Council may find it more dif- Alina Entelis tunate and long-term consequences for the ficult to retain its legitimacy in exercising its Research Assistant people affected by the conflicts in Syria, responsibilities under the UN Charter and Anna Haven Ukraine, Myanmar and Yemen. At times in maintaining international peace and security. Research Assistant the past, the Council was innovative and Security Council Report is a non- profit organisation supported by the Governments of Australia, Austria, Belgium, Canada, Côte d’Ivoire, Denmark, Estonia, Finland, Germany, Iceland, Indonesia, Ireland, Kuwait, Liechtenstein, Luxembourg, the Netherlands, New Zealand, Norway, Republic of Korea, Saint Vincent and the Grenadines, Singapore, Spain, Sweden, Switzerland, Turkey and United Arab Emirates, and Carnegie Corporation.

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